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THE EDGE


Spring 2016
INSIDE THIS EDITION:
Information & Articles
Chair's Message                     Mock Trial Competition            Teachers Law School 
Article: Mediation Sins                Legislative Update                CT Board Certification
9th Circuit Business Court                                                2016 Discovery Handbook

 
2016 CLE Programs
Hot Topics in Evidence         Advanced Trial Advocacy     CT Update & Cert Review                                          Advanced Medical Malpractice
Message From the Chair
Welcome to the Spring edition of The Edge.  The Trial Lawyers Section has been extremely busy since the start of the new year and would like to share with you some of our contributions- the Chester Bedell Mock Trial Competition, the Teachers Law School, and our legislative efforts as well as our CLEs. Additionally, we are pleased to be able to provide you an excellent article on mediation.  We hope you enjoy the Section's news and as always, if you have any questions, would like to participate with any of the Section activities or have any news to share with the Section, please feel free to contact me or any of the Executive Council members.  Happy Spring!

Courtney Grimm, Chair
Trial Lawyers Section

 
2016 Chester Bedell Mock Trial Competition
The 2016 Chester H. Bedell Memorial Mock Trial Competition, hosted by the Trial Lawyers Section of the Florida Bar, was once again a great success. Eighteen teams from ten Florida law schools competed this year at the Sawgrass Marriot Resort in Ponte Vedra, Florida. We were honored to have U.S. District Court Judge Timothy Corrigan of the Middle District of Florida preside as judge for the Finals.

This year the finalists were a team from FSU and a team from FIU. For the first time ever, FIU emerged as the Chester H. Bedell Mock Trial Champions. Additionally, FIU’s Elroy John was the recipient of the Best Advocate Award.

 
2016 Teachers Law School
The 4th installment of the Teachers Law School was conducted on January 21 and 22, 2016, in Ponte Vedra.  This year’s workshop featured presentations on the three branches of government and the court system, the role of the independent lawyer, the right to a civil jury trial, criminal justice, family law and First Amendment and school issues.  Special presentations included such topics as Bush v. Gore, the Casey Anthony trial and the Constitution Revision Commission.  Presenters included Federal Court Judges Timothy J. Corrigan, Marcia Morales Howard and Brian J. Davis, former counsel for Al Gore, Benedict Kuehne, Esq., Judge Belvin Perry, Jr., and a number of esteemed lawyers from throughout the state.  We received assistance from and are thankful for the contributions provided by The Jacksonville Chapter of ABOTA and R. Scott Constantino, in particular.
 
There were over 70 teacher attendees from St. John’s, Duval, Clay, Putnam, Sarasota and Palm Beach counties.  As experienced with past workshops, this year’s installment was very well received by the teachers.  The program was praised by many who attended, stating that it had invigorated their desire to educate their students about the American justice system.  One teacher in particular spoke of the workshop causing her to reconsider her recent thoughts of leaving the profession.

 
The Seven Deadly Mediation Sins
Article by Joel Levine
 
After mediating hundreds of cases in all different fields and parts of the country over seventeen years, I’ve reached a few conclusions about mediation that might be helpful to trial lawyers and which I’ve boiled down to seven deadly sins.   Avoiding my mediation sins can’t guarantee a favorable settlement.  But they might at least lower the odds of self-inflicted wounds. 

First, let me say that my style of mediation is rather intensely proactive. I truly believe participants in mediation are more concerned with results than process. Second, much, though not all, of my advice is specific to mediation with private mediators chosen by the parties.  Unlike court-ordered settlement conferences with judges, mediation with private mediators presents greater opportunities for influence by the parties.  Parties can select the mediator with the best style and subject matter background possible for their specific case.  Those disclaimers out of the way, the seven deadly sins:

1. Not Preparing
I’d guess that something like 85% of all cases settle in mediation.  Yet many attorneys who meticulously prepare for trial come relatively unprepared to mediations.

First, when preparing, master the law.  I’ve found one side’s adept use of statutes or cases that disprove “the law” presented as gospel by the other side (but without backup) is quite effective. 

Then there are the facts.  I’m always impressed when counsel hands me email, affidavits, deposition testimony or other concrete evidence that the argument I’m delivering from the other side has more holes than Pebble Beach. 

Yes, I know you might want to save things for trial.  But since so few cases actually go to trial and mediation might be your last, best chance of producing a tolerable result, rethink the balance between using what you have at mediation or waiting to surprise the other side at trial.  Remember that they probably already know about it, and the trial may never happen anyway.

Finally, understand your expert reports.  Attorneys sometimes decide to present expert reports at mediation without the ability to defend them or answer basic questions asked by the mediator or opposing counsel.  The entire purpose of offering the report is defeated. 

2.  Choosing The Wrong Mediator 
Mediators have different approaches, though the best try to adjust their styles to fit the circumstances of the case. They range from strongly proactive, evaluative, judgmental and assertive to passively transformative – asking few questions and allowing the parties to lead in every aspect of the process. 
 
Ask yourself what type of mediator you want in your specific situation. Do you want someone who will battle with the other side, dissecting their weaknesses?  Can you tolerate it when he exposes yours? Or do you want someone non-confrontational to calm the contentious waters.

Many mediators use the traditional facilitative, non judgmental method. Still, attorneys typically tell me they prefer proactive and evaluative mediators rather than traditionalists whose passive goal is to simply get people to talk to each other without interjecting themselves into the dialogue.

If you do select a proactive mediator in hopes she will clearly pinpoint weaknesses in the opposing party’s case, don’t attack her when she does the same to yours. 

Styles vary a great deal, too.  Some mediators book half days and tell you that if you haven’t settled by 1:00 p.m., it’s over. I’ve heard both that this is ineffective because negotiations ripen at their own pace and settlements are lost when everyone has to leave prematurely, and that the artificially-imposed pressure moves people along and accelerates a process that would otherwise just waste lots of time.

Using retired judges brings prestige and authority to the table. Many are very effective, and some even might dare tell you how the case will come out if you don’t settle.  

While not everyone agrees with me, I’d suggest choosing a creative, proactive mediator who has an understanding of the mediation process and a track record of bringing people together in various settings.  What counts is a flexible, intelligent person able to handle a wide range of situations.  You might not think “fair and just” mater much in a mediator.  But consider this: a time comes in most mediations when the parties approach the final number.  The paying party wants to be certain it pays the absolute minimum it can get away with, and the payee wants to be certain it is receiving the absolute maximum possible. At this point, counsel often look to the mediator to wrap things up and rely on him to bring the parties to the ultimate amount. If your mediator is knowledgeable in the area; experienced in negotiations and settlements; and perhaps most importantly of all, a fair and just person, the parties will feel more comfortable with the settlement sum.  While the cynical essence of most good settlements is that everyone goes away unhappy, I like to think that, in most of the cases I mediate, the parties are, if not ecstatic, at least satisfied that a fair resolution was reached.
 
3. Not Preparing The Mediator
The benefit of preparing a proactive mediator is incalculable.  A well-prepared mediator can jump-start the process and bring comfort to all participants because he understands the case. Some cases are settled by restructuring financial obligations, and a creative mediator equipped by the parties to thoroughly review the situation in advance can analyze the impact of various formulae, payment terms, collateral, interest, guaranties, fees and other components of a settlement. The mediator can help restructure businesses, leases, EBITA calculations, disability payouts, fair use agreements, license terms, reimbursements, outsourcing, coverage and allocations, structured settlements, franchise reinstatements, and a wide variety of resolution mechanisms. 

Most mediators will give you an opportunity to speak to them in advance of the mediation.  Mediation summaries or statements which discuss matters not obvious from the documents or pleadings are also very helpful.  Although mediation statements are confidential, it’s most helpful if you allow the mediator to use it in conversations with your adversary.

Mediators areneutral. There’s nothing wrong with legitimately influencing the mediator.  After all, he is, in a way, your spokesman in the caucus room.  Consider providing the mediator questions to ask the other side. 

Would your client prefer to resolve this matter and continue a relationship with the other side? Ask the mediator to suggest “on his own” the possibility of resolving this unfortunate dispute and reestablishing a relationship going forward.

4. Not Preparing The Client
Ugh, more preparation.  Boning up on the case as counsel and working the mediator aren’t enough.  Most clients need some orientation too.  Some are very familiar with litigation and the mediation process. Many are not.  Explain it to them.

First offers are often the biggest shocks to mediation novices.  The second biggest shock to parties is when a neutral mediator begins disassembling their case and lauding the merits of the opposition. Let your clients know what to expect from the mediation process.  Make them understand that the same process is occurring in reverse across the hall.

5. Not Asking the Mediator For Help
This mediation foible might most resemble the deadly sin of pride.  It always amazes me how the very best trial lawyers will ask for my help at various times during the mediation process while neophytes trying to impress will often attempt to appear omniscient.  A good mediator can help restructure a severance, suggest payment terms for a buy-out, or escalators in a ground lease.  Best of all, doing this won’t embarrass you in front of your client. In fact you can score points with your client by explaining that the reason you chose this mediator was because he was knowledgeable in this area and can help you frame proposals as well as evaluate whether the bad guys’ ideas are fair.
 
6. Insulting Everyone
Now we come to the deadly sin of wrath.  There are an infinite number of ways to be offensive, and if your goal is to kill the mediation by creating an environment no reasonable human being would tolerate while maximizing the amount you can charge during the contentious litigation to follow, you are on the right track.

On the other hand, if your goal is to resolve the dispute, the prudent approach is to acknowledge that you’re there because both sides have points of varying merit, you appreciate the costs and expenses and unpredictability of litigation, and it would be in everyone’s interest to try to fairly resolve your differences.  In other words, during the opening you want to create as collegial an atmosphere as possible while letting the other side know you are capable of going the distance if necessary.  Lastly, I guess I should also say be nice to the mediator since mediators can influence the outcome of a settlement.

7. Lack of Clarity
You remember the game of telephone you played when you were a kid.  The idea was to form a line of people and whisper a few sentences in the ear of the first person on line. She whispers what you said to the next person, and so on down the line. When the last person repeats what he heard, it differs significantly from the original.
         
Even communications between two people become muddled in the minds of the listeners. Three common examples illustrate the point. After six hours of mediation the defendant made an offer acceptable to plaintiff. When drafting the settlement, defendant said for the first time that its offer included everything paid to plaintiff in the past. Because the defendant had paid plaintiff $1 million before any dispute arose, and then ultimately agreed to settle the case for $1.5 million, the plaintiff naturally believed it was receiving a new $1.5 million, not $1.5 million less that $1 million already paid. In reality the defendant was offering $500,000 to settle, though the plaintiff thought the entire mediation had been working toward $1.5 million.  The plaintiff was understandably infuriated and the mediation cratered. 

My second example needs no illustration for anyone who’s settled many cases.  It’s the situation where, all day long, the parties negotiate over a sum of money, and after they agree the defendant says for the first time: “Well, of course we can’t pay this all at once.”  It’s one thing to raise installment payments early on, or later to try to discount the payment stream with a reduced flat sum upon signing.  But it borders on bad faith to wait until the very end of the mediation to attempt to modify the deal with gradual payments despite knowing the other side has been negotiating for a lump sum all along.  Not only does this ploy polarize people and create an obstacle to settlement, it seldom works.  The recipient’s response usually is that if the paying party wants to pay over time, the principal balance will increase and bear interest.  Then security comes up, adding several more hours to the mediation.  Of course, these cases also get settled, but whether through intent and artifice or just sloppy communication, the settlement has unnecessarily been jeopardized.

The third example consists of waiting until the end of the mediation and stating that the deal is subject to approval of the board, CEO, executive committee, commission, municipality, wife, spiritual advisor, whoever.  In many cases dealing with government, the parties know that getting later approval from some official body or public officer is a prerequisite to completing the deal, but if that isn’t  obvious, parties should say so at an appropriate time during the mediation.  My suggestion is to state it during the opening.  Some attorneys believe that if they mention it prematurely, they are signaling too enthusiastic a willingness to compromise.  If that’s true, waiting until the end could be destructive.  “I’m not sure where this will go, but you need to understand that if we do manage to reach an agreement, it will have to be subject to the approval of the board” is a rather benign formulation of the prerequisite.

The more complex the issues, the more precise counsel and the mediator must be.  Since most of your cases will settle, make the most of mediation by preparing diligently, choosing the right mediator, asking for help when appropriate, and being collegial and clear.  Good and maybe even divine consequences will follow.    
 
Joel Levine
 
Joel Levine, based in Florida, has extensive legal and business experience and works as a full time ADR practitioner serving as Mediator and Arbitrator in a wide variety of commercial cases on a national and international level.  For additional information please see www.joellevineesq.com or contact him at 305.571.1164 or email to: joel2121@atlanticbb.net. This is a digested article originally published in Litigation, Volume 42, Number 2, Winter 2016. © 2016 by the American Bar Association. Reproduced with permission.

 
Legislative Update
On March 11, 2016 the Florida Legislature concluded the 2016 Session. Legislators, who spent over three quarters of the year of 2015 in Tallahassee, were happy to reach a decision on the budget and return to their homes in time to prepare for the upcoming elections in November.
 
During the session we monitored approximately seventy bills on behalf of the Trial Lawyers Section.  Of those, only ten bills passed both houses and were available to be sent to the Governor for his consideration.  During the session, we met with and worked with the other section lobbyists and the lobbyists for The Bar on a variety of issues, including court funding and term limits for judges.  This year’s budget was approximately $82.3 billion dollars, with $524 million going to the judicial branch.   Of that amount the Governor recently vetoed approximately $4.3 million in court projects. 
 
Throughout this year’s Session we monitored issues ranging from the drones used in surveillance to social media privacy.  The bills that passed included increased use of veteran and drug courts, alternative sanctioning, expungement of juvenile records, and the repeal of certain requirements for nonresident plaintiffs.
 
Term limits for appellate courts was an issue raised this year with language proposing to create term limits for Supreme Court and DCA judges. We spent the last weeks of the Session speaking directly to legislators on the issue. The opinion of each member we spoke with was in opposition to the concept of term limits for judges. Ultimately the bill died in the Senate Judiciary Committee.
 
Another bill that gained a lot of attention this year was Senate Bill 1086 by Senator Rob Bradley relating to prejudgment interest. The bill would have required the court to award prejudgment interest on economic damages to a prevailing plaintiff in a personal injury action case. This bill died in the Senate Appropriations Subcommittee on Criminal Justice, but Senator Bradley has indicated he will be refiling this bill again next year.
 
We are still unsure, but there have been rumors of a Special Session to take place in the spring or summer of this year. We look for this Special Session to have little to no impact on the Trial Lawyers Section and to focus mainly on issues such as the gambling compact and healthcare.

For more information and to access the official 2016 Trial Lawyers Section Legislative Report, it can be found on the Section's website:
 
Civil Trial Board Certification
Initial Applicants:
The filing period for initial applications opens July 1, 2016 and applications must be postmarked by August 31, 2016.

Recertification Applicants:
If you were originally certified in 1986, 1991, 1996, 2001, 2006 or 2011. All requirements for recertification are to be completed by May 31, 2016 unless you file a recertification extension request. Applications must be postmarked by June 15, 2016.
 
Applications for initial board certification and recertification will be available on the Civil Trial Certification website by April 1, 2016.

 
9th Judicial Circuit Business Court
The 9th Judicial Circuit Business Court is undertaking a study of the practices and procedures used in the Business Court located in Orange County, Florida. The Business Court Rules and internal operating procedures are in the process of being examined to insure that these Rules do not conflict with, or detract from, the Florida Rules of Civil Procedure, or Rules of Judicial Administration, which are approved by the Florida Supreme Court.  A Commission has been appointed by the Business Court, which is chaired by Mayanne Downs, former President of The Florida Bar, and includes the two sitting Business Court Judges, Judge Alice Blackwell and Judge Lisa Munyon, as well as several members of the Bar who are frequently advocates in the Business Court. The Commission will work on improving case management for efficiency and economy for matters filed in the Business Court.
 
Comments and suggestions for amendments and modifications to the 9th Circuit Business Court Rules or procedures are invited and may be forwarded to kim.ashby@akerman.com.

 
EXECUTIVE COUNCIL
 

OFFICERS:

CHAIR: 
Courtney K. Grimm
(904) 353-0211
cgrimm@bedellfirm.com

CHAIR-ELECT:
Thomas E. Bishop
(904) 598-0034
tbishop@tannerbishoplaw.com

SECRETARY/TREASURER:
Joseph F. Kinman, Jr.
(813) 223-5111
jkinman@ogdensullivan.com

IMMEDIATE PAST CHAIR:
Hector A. Moré
(407) 420-1414
hmore@forthepeople.com
 

EXECUTIVE COUNCIL:

Kimberly A. Ashby
Thomas H. Dart
Thomas S. Edwards, Jr.
Jeffrey M. Goodis
J. Wiley Hicks
M. Katherine Hunter
J. Charles Ingram
Christopher S. Knopik
Darryl L. Lewis
Mindy McLaughlin
James E. Messer, Jr.
Nicholas P. Mizell
Lewis W. Murphy, Jr.
Dennis R. O'Connor
Terrence P. O’Connor
David R. Roy
Herman J. Russomanno, III
Clifford W. Sanborn
Weston F. Smith
Vicki L. Sproat
John W. Williams, Jr.
 
SPECIAL ADVISORS:
Charles J. Bartlett
Theodore C. Eastmoore
William E. Partridge
 
BOARD LIAISON:
Wayne L. Helsby
(407) 571-2152
whelsby@anblaw.com
 
JUDICIAL LIAISON:
Hon. Amy Smith
 


SECTION ADMINISTRATOR:
Chase Early
(850) 561-5628
cearly@floridabar.org
UPCOMING EVENTS
Executive Council Meeting & Out of State Retreat
April 16, 2016
9:00 am - 12:00 pm
The Driskill Hotel
Austin, TX
 

Chester Bedell Memorial Foundation Luncheon
The Florida Bar Annual Convention
June 17, 2016

12:00 pm - 2:00 pm
Hilton Orlando Bonnett Creek
 

Executive Council Meeting
The Florida Bar Annual Convention
June 17, 2016

2:00 pm - 5:00 pm
Hilton Orlando Bonnett Creek
 
SECTION CLE
Hot Topics in Evidence 2016
May 6, 2016
Holland & Knight, LLP
Orlando, FL
Registration & Information
 
This one day seminar has been designed to appeal to civil, criminal, and appellate practitioners. Those in attendance will benefit from a thorough discussion of the latest developments in Florida evidence law, and an exploration of difficult, recurring evidentiary issues.
 
CLE Credit - 7.5 hours including 1.5 Ethics hours.
 

Advanced Trial Advocacy 2016
May 10-14, 2016
UF Levin College of Law
Gainesville, FL
Registration & Information
 
Only 5 seats remaining!
 
All the CLE and Ethics Hours You Need for Three (3) Full Years!

This Program Will Substitute as One of The Trials Required for Certification and Recertification for Civil Trial and Worker's Compensation!

CLE Credit - 39.5 hours including 11.0 Ethics hours.
 
The Advanced Trial Advocacy Seminar is hands-on, learning-by-doing trial skills training. It is intended for attorneys who have practiced a minimum of five years and are involved in a full time litigation practice. Jury experience is preferable but not required.

This advanced seminar is a NITA Style interactive format with judges and lawyers from around the state. It provides all the required CLE and Ethics credits for the three year cycle. The faculty consists of trial court judges and board certified trial lawyers from around the state. This is an intense interactive program for both the novice and the experienced litigator.

Fifty-six (56) attorneys will be selected. Selection is based on a first-come, first served basis. The case file for this program is used as a source of facts and law for the training. Participants hear lectures, and join in discussion and demonstrations. Participants also receive suggestions from experienced Florida trial lawyers on making for more effective presentations. Presentations are videotaped and critiqued in one-on-one sessions.

 


Annual Civil Trial Update & Board Certification Review 2016
One of our highest rated seminars ever!
Purchase the Online Seminar or CD/DVD today!
 

Advanced Medical Malpractice 2016
Purchase the Online Seminar or CD/DVD today!
 
DISCOVERY HANDBOOK
The 2016 Florida Civil Discovery Handbook is now available on the Section's Website.  Please visit 2016 Civil Discovery Handbook to access this publication.
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