Copy
View this email in your browser

THE EDGE


Winter 2016
INSIDE THIS EDITION:
Chair's Message                    Rule 26(b) or Not To Be?               Legislative Update
Mock Trial Competition            Teachers Law School                          Civil Trial CLE
Medical Malpractice CLE          Leadership Academy        Civil Discovery Handbook
Message From the Chair
As a member of the Trial Lawyers Section of The Florida Bar, WELCOME to the Section’s inaugural issue of The Edge.

In order to keep Section members abreast of the Section’s events, we began providing you monthly notices sharing the Section’s calendar, CLE’s, and notes of interest.  In addition, we will now provide you quarterly the Section’s publication of The Edge, which will contain more detail concerning the Section’s events and issues of interest to the Section’s membership.  It is our hope that these notices and The Edge will keep you informed.  If any member would like to share any Section news or information of interest to the Section, please submit your request to Chase Early at cearly@flabar.org.

Our Section is one of the largest and most distinguished Sections of The Florida Bar, and is unique in that it brings together Florida lawyers- plaintiff, defense, and commercial- who focus their practice on trials and litigation in civil cases.  We are committed to providing a forum for discussion and addressing matters which are of interest or impact trial practice in Florida. The Section hosts a variety of continuing legal education courses throughout the year designed specifically for trial lawyers like yourself, and provides unparalleled support for legislative initiatives designed to preserve adequate funding for the courts, protection of the separation for the three branches of government, and retain access to our courts for all Floridians. In order to continue to serve the Section’s membership, we need your input!

On behalf of the Trial Lawyers Section, I invite you to become an engaged member of our Section and encourage you to contact me or any member of the Executive Council directly if you should have any questions or concerns.  
Rule 26(b) or Not To Be?
December 1, 2015 amendments to Rule 26(b) of the Federal Rules of Civil Procedure became effective with the goal of achieving "proportionality". What is proportionality? After approximately a year of study, thousands of comments received from the public, Bench and Bar, this important Rule change is designed to address the imbalance perceived in litigation when the needs of the case are overrun with the burden and expense of discovery, especially in our digital and cybernetic environment. If you have the notion to stop reading this article because you do not have a federal practice, Wait. Think of all the times the state court rules and procedures have tracked and followed changes in the Federal Rules, both officially and unofficially. Consider spending the 10 to 15 minutes reading this important news to give your practice the edge on the competition.

There is a chance you will agree that the litigation practice in Florida has become unwieldy and too expensive, resulting in the contraction of the number of cases filed, and the work for litigation attorneys to do. If this be true, the proportionality criteria in the Rule 26(b) amendments may be part of the solution. This article is a thumbnail of Rule 26(b) changes. Recommended reading for the complete analysis of the Guidelines and Practices with commentary includes the full discussion in "Guidelines and Practices Implementing the 2015 Discovery Amendments to Achieve Proportionality," published by Duke Law School's Center for Judicial Studies, 99 JUDICATURE no.3, Winter 2015, (at 47 et seq.) ("the Duke Study"). See also, "The FRCP Amendments, Small Step or Giant Leap?" Practical Law (Dec. 2015), p. 44.

Here are some of the new guidelines and practices to consider:

A) Rule 26(b)(1) now provides that the scope of discovery must be proportional to the needs of the case;

B) Six factors are identified to consider in determining what is "proportional to the needs of the case": 1) the importance of the issues at stake in the action, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of the discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit;

C) The weight given to each "proportionality" factor will vary depending on the facts of each case- note that the "issues at stake in the action" is a separate factor from the "amount in controversy" suggesting that a critical issue may not be the one linked to the largest amount of the damage claim;

D) The requesting party does not need to make an advance showing of proportionality but parties are cautioned against using boilerplate proportionality objections and advised to state the grounds with specificity;

E) The court should consider the cost of the technology that is reasonably available to the parties and apply an objective reasonableness standard;

F) The parties should engage in early and ongoing discovery planning which will give them the opportunity to raise to the court any disputes they cannot solve- this suggests that discovery disputes which have some legitimate basis but which objections are brought to the court in the later stages of discovery may lose out on a proportionality objection;

G) Courts are encouraged to issue an order in advance of the Rule 26(f) conference that clearly communicates the expectations regarding proportionality- since proportionality rulings are to be made using a case-by-case analysis, this early conference may acquaint the parties in assessing the caliber of adherence to proportionality the court will require;

H) Courts are encouraged to hold a case management conference which is interactive to provide the judge an opportunity to explore plan discovery and weigh in on proportionality early in the case- most of Florida's Business Court divisions already hold these early case management conferences;

I) Courts should be proactive in encouraging parties to stipulate to facts which are undisputed and which can be removed from discovery;

J)  Parties should focus on discovery of information from the most easily accessible sources- this approach has been described as conducting discovery first with the "low-hanging fruit;"

K) Courts are encouraged to consider ordering ways to streamline discovery including arranging for the informal exchange of information;

L)  Courts should include a live in-person conference requirement between the opposing parties before a motion to compel a discovery dispute, which could be by videoconference and certainly must be by phone otherwise, which is already pretty standard in Florida;

M)  The Duke Study makes it clear that the courts are still given lots of flexibility to deal with discovery, with the ultimate goal of achieving proportionality such that the discovery request is not overly burdensome as it relates to the need for discovery.

Both state and federal judges are more mindful of the expense of e-discovery and other technology discovery requests, production of data in native format, and all of the expertise and labor that goes with that kind of production. Already there is an issue of the potential for denial of "access to the courts" faced by all jurisdictions in the civil practice due to the cases which cannot be brought because of the anticipated expense. Whether your practice is in federal court, in state court, or both, get ready to address "proportionality" in your next case. There is a good chance your clients will be grateful to you for staying on top of this issue which may benefit the delivery of legal services in Florida. 

 
Legislative Update
In January 2016 the Florida Legislature will convene its regular session, after more than 25 weeks of committee meetings, session, and special sessions, in calendar year 2015.  The “part-time” Florida legislature became nearly full-time this year.  The Trial Lawyers Section will continue its efforts to monitor and assist in the development of legislation that falls within the three Legislative Platforms that form the basis for the Section’s involvement with the Florida Legislature.  We are already monitoring dozens of bills and meeting with Senators and Representatives leading up to the start of the 2016 session in January.  We expect to be working closely with leaders of the Florida Bar on a number of legislative issues which might impact trial courts, and will be seeking the assistance of Section members who have specialties in those areas.  The Legislative Platform for the Trial Lawyers Section, as adopted each year, is as follows:
 
Issue I: We support legislation which promotes access to courts.  The citizens of this state are guaranteed access to courts by Article 21 of the Florida Constitution.  Those courts must be open to every person for redress of any injury, with justice administered without sale, denial or delay.
 
Issue II: We support an independent judiciary. All judges must work independent of ideological influence, and judges should have the ability to render decisions free from political or popular influence and render decisions based solely on the facts and law. 
 
Issue III:  We support adequate funding of the state court system.  The Framers of the Constitution expected Florida’s courts to be fully funded to assure a judicial system that is fair and efficient.
2016 Chester Bedell Memorial Mock Trial Competition
For over 30 years the Trial Lawyers Section has annually conducted the prestigious Chester H. Bedell Mock Trial Competition for mock trial teams from Florida's accredited law schools. The 2016 competition will take place from January 20th through the 22nd at the Sawgrass Marriott Golf Resort & Spa in Ponte Vedra Beach. This year there will be 10 Florida law schools with two teams each competing to be this year’s champion. Each team is comprised of 4 active team members, with two trying the case for the plaintiff or defense and two serving as witnesses. The law school affiliation of each team is unknown to the presiding judge and to the jurors that will assess each team’s performance. There are two preliminary rounds and then quarter finals, semi-finals and the final between the two teams that make it through this arduous contest. The juries assess the performances of the teams and select the winner of each round, but no verdict on the merits is rendered. At the conclusion of the final trial, the jury panel will select a team winner and a best advocate. 

This year’s trial problem, Fudd v. Caskets-R-Us, Inc., is a comparative fault case that revolves around a casket handle that allegedly failed while the deceased was being transported to the grave site by a group of pall bearers. The casket company is being sued by the family of the deceased because she fell out of the casket and rolled down the hill when the casket handle broke off. The casket company has asserted in its defense that the funeral home was liable because it sold the family a casket that was not intended for a person as large as the deceased. 

If you would like to serve as a Juror for this year's competition, please contact Tom Edwards at TSE@Edwardsragatz.com.
2016 Teachers Law School
U.S. Supreme Court Justice Sandra Day O’Connor retired from the Supreme Court in 2006 and began to devote her time to improve civics education in the nation’s schools.    Her goal is to educate schoolchildren about the three branches of government and, in particular, the judicial branch.   In furtherance of this goal, among many efforts, she founded a civics learning website called icivics.  In 2010, the Justice Sandra Day O’Connor Civics Education Act took effect.  The legislation required that civic education content be included in the Florida K-12 language arts curriculum.
 
To further the purpose of the Justice Sandra Day O’Connor Civics Education Act, the Trial Lawyers Section, through its executive council, developed the Teachers’ Law School, beginning in 2012.  Since that time, the Teachers’ Law School has been held annually at different locations throughout Florida, and attended by hundreds of middle school and high school teachers.  The workshop lasts two days and consists of presentations by esteemed lawyers, judges and justices on almost every aspect of the judicial system.  Teachers learn about and are given tools to educate their students about the federal and state courts, the role of the jury and the independent lawyer, the First Amendment, criminal justice, family law, and more.  The goal is to further educate teachers and assist them with educating their students about the judicial system and its importance.
 
In 2016, the 5th installment of the Teachers Law School will be held in conjunction with the Trial Lawyers Section Summit and the Chester H. Bedell Mock Trial Competition, on January 21st and 22nd in Ponte Vedra, Florida.  This year’s workshop will feature 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 will include such topics as Bush v. Gore, the Casey Anthony trial and the Constitution Revision Commission.  Presenters will include 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.
 
In addition, for the first time this year, the teachers will not only watch the mock trial finals, but serve as the trier of fact, rendering their verdict on the substantive issues in the mock trial problem.
 
We are looking forward to continuing to promote civics and the important role of lawyers and our justice system, while championing the efforts of a great Justice, Sandra Day O’Connor.
Annual Civil Trial Update & Board Cert. Review
February 4-5, 2016
Tampa Airport Marriott, Tampa, FL

REGISTER NOW!

Also Available via Live Online Webcast!
 
This course is designed for two audiences: those who are preparing to take the Board Certification exam for civil trial or business litigation and those who want a refresher course and update on civil trial practice.
 
CLE Credit - 16.0 hours including 2.0 Ethics hours.
CJE Credit - 9.25 hours including 1.75 Ethics hours.

Thursday, February 4, 2016

Civil Procedure
Matthew J. Conigliaro, St. Petersburg

Trial Skills: Opening and Closing
F. Gregory Barnhart, West Palm Beach

Lunch (included in registration fee) &
Remarks about the Certification Exam

Trial Skills: Preserving the Record for Appeal
Jack J. Aiello, West Palm Beach

Recent Developments in Business Litigation
Darryl Bloodworth, Orlando

Trial Skills: Examination of Witnesses
(Including Experts, Daubert Motions and Motions in Limine)
Patricia Lowry, West Palm Beach

 

Friday, February 5, 2016

Ethics
Edward K. Cheffy, Naples

Recent Developments in Personal Injury and Wrongful Death
Gary D. Fox, Miami

Lunch (on your own)

Trial Skills: Voir Dire
William E. Hahn, Tampa

Evidence
Professor Charles Ehrhardt, Tallahassee
Advanced Medical Malpractice CLE
March 11, 2016
USF Health / Center for Advanced Medical Research and Simulation (CAMLS), Tampa, FL

REGISTER NOW!

Also Available via Live Online Webcast!
 
CLE Credit - 6.0 hours including 1.0 Ethics hours.
 
On Friday, March 11, 2016, our Section will be providing an Advanced Medical Malpractice Seminar designed for those practitioners who practice law in the area of Medical Malpractice and Personal Injury where medical conditions and damages resulting therefrom are included in the litigation.  This program will be held at the State of the Art Medical Training Facility affiliated with the University of South Florida Medical School known as CAMLS (Center for Advanced Medical Learning and Simulations) in downtown Tampa, Florida.  In addition to presenting and discussing current relevant issues and ever-evolving statutes and case law in this subject area, ethics and professionalism will be presented, as well, during a working lunch session included in the registration fee.  
 
Following lunch for the afternoon session, a panel discussion will take place with the leading practitioners in the field of Medical Malpractice and Civil Trial Law.  These will be the same speakers who will present in morning session the latest insight into expert witness discovery, the pre-suit process and requirements, the privileges claimed under the Patient Safety Organization Quality Improvement Act (“PSOQIA”) and how it impacts and/or preempts Florida’s Amendment 7, evidentiary issues and both a legislative and case law update.  At the conclusion of the panel discussion, the attendees will have the privilege of touring and observing this remarkable facility utilizing the most sophisticated surgical training and medical simulations, animations and 3D Imaging, including life size body parts all demonstrated as potential Demonstrative Exhibits for Trial.  You will not want to miss this opportunity if this is your field of law or practice.
The Florida Bar Leadership Academy
Applications for the incoming 2016-2017 Florida Bar Leadership Academy are now available on line at floridabar.org/leadershipacademy. Interested Section Members are encouraged to apply for this valuable training program designed to assist lawyers in enhancing their leadership skills to better serve the profession.

If Section Members would like to be considered for nomination by the Trial Lawyers Section, please provide a copy of your application to Chase Early at cearly@flabar.org by January 8, 2016. Please note that a nomination by the Trial Lawyers Section does not guarantee selection for the Leadership Academy.
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@flabar.org
UPCOMING EVENTS
Chester Bedell Memorial Mock Trial Competition
January 20-22, 2016
Sawgrass Marriott,
Ponte Vedra Beach, FL
 

Teachers Law School
January 21-22, 2016
Sawgrass Marriott,
Ponte Vedra Beach, FL
 

Executive Council Meeting
January 23, 2016

9:00 am - 12:00 pm
Sawgrass Marriott,
Ponte Vedra Beach, FL
 
 
Executive Council Meeting & Out of State Retreat
April 16, 2016
9:00 am - 12:00 pm
The Driskill Hotel
Austin, TX
SECTION CLE
Annual Civil Trial Update & Board Certification Review
Feb. 4-5, 2016
Tampa Airport Marriott
Tampa, FL
Registration & Information
 

Medical Malpractice Seminar
March 11, 2016
USF Health/
Center for Advanced Medical Learning & Simulation
Tampa, FL
Registration & Information
 

Hot Topics in Evidence
Information Coming Soon!
 

Advanced Trial Advocacy
Information Coming Soon!
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.
Forward
Share
Tweet
Visit the Trial Lawyers Section Website!
Copyright © 2016 The Florida Bar Trial Lawyers Section, All rights reserved.


Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list