Read July 2006 text version


" A C e n t ur y o f S e r v ice t o M i a m i - D a d e " 123 N.W. First Avenue Miami, Florida 33128 / / November 2010



priate the building is named the Thomas H. Barkdull, Jr. District Courthouse and is located at the intersection of Southwest 117th Avenue and Barkdull Way. Judge Barkdull followed William James famous quote- and Judge Barkdull's legacy of making a difference is something the DCBA is very proud to recognize and appreciate. The DCBA has many members who provide inspiration everyday. United States Magistrate Judge Peter Palermo just received the Federal Bar Association's First Annual Honorable Edward B. Davis Award for Service to the Bench & Bar (the "Ned" as Federal Bar Association President Brett Barfield announced). Judge Palermo remains an active DCBA member and continues to serve the public. He has sworn in over 600,000 new citizens throughout his judicial career. Judge Palermo always has had a positive attitude about making a difference for a long time. Congratulations Judge Palermo! A great way to plan to make a difference is provided all of us in the 7th Annual Minority Mentoring Picnic will take place on Saturday, November 13th from noon to 4 PM at Amelia Earhart Park in Hialeah. Minority law students from all Florida law schools are expected, along with more than 2500 lawyers, judges and guests. The DCBA has supported the Minority Mentoring Picnic from the beginning and we encourage all our members to participate. You may also find much information at John Koyzak is making a difference one student at a time and in addition to being a fantastic event, it is a great way to help encourage the future members of our profession. We do make a difference. I hope we all act that way.



(For more information go to

11/13 11/18

12:00 noon ­ 4:00 p.m. 7th Annual Minority Mentoring Picnic - Amelia Earhart Park 6:00 p.m. ­ 8:30 p.m. Bids for Kids- Sabadell United Bank

11:30 a.m. General Membership Luncheon Hyatt Regency Downtown: Speaker U.S. Attorney for the Southern District of Florida Wilfredo Ferrer



6:00 p.m ­ 9:00 p.m YLS Social and Pro Bono & Community Service Committee Holiday Party ­ Coconut Grove Bank


Special Guest Speaker Wilfredo Ferrer, U.S. Attorney for the Southern District of Florida Tuesday, November 9, 2010 11:30 am to 1:30 pm Hyatt Regency Miami Hotel 400 SE 2nd Avenue Miami, Florida



Ac t as if w hat y ou do mak es a di f fe renc e. I t does .

W i ll i am Jame s


On June 28, 2010, Chief Judge Joel H. Brown signed Administrative Order No. 09-13-A1 to enlarge and expand a Pilot Program for Electronic Submissions of Courtesy Copies of Motions and Proposed Orders to Circuit Court Judges ("Program"). The purpose of the eCourtesy Copy Program is to "enhance the efficiency of judicial review of motions, exhibits, submitted case law and other hearing specific documents of motion calendar and special set hearings." AO No. 09-13-A1. With this AO, the Eleventh Circuit Court takes an important step toward streamlining communications between attorneys and Judges. This system--already fully operational in Judge Israel Reyes' division-- allows for electronic transmission of motions, orders, exhibits, and any other documents prior to the scheduled hearing date. The genesis of the eCourtesy Copy Program came shortly after Judge Reyes was appointed Associate Administrative Judge and became a liaison with the Court's IT provider. Judge Reyes, Judge Brown and the other Judges involved, recognized that with the increasing case loads, it was time to improve the technological capabilities of the Court. Judge Reyes met with the Court's IT providers to discuss how to improve the crucial, voluminous, and costly area of the interaction between attorneys and Judges. Together with the Court's IT provider, Judge Reyes selected SharePoint, a Microsoft Windows based system. Not surprisingly, Microsoft's own literature on SharePoint describes it as a system that makes it easier for people to work together. If successful, the Circuit Court's ambitious use of SharePoint could likely become a poster child for this program. As Judge Reyes explained, Judges receive a large volume of documents from attorneys for hearings. With each Judge carrying caseloads approaching or exceeding 5,000 cases, a typical week of motion calendar and special set hearings requires the submission and review of thousands of documents. The SharePoint program makes this process considerably more efficient because it eliminates the need for mailing or handdelivering hardcopies to Judges' chambers. The Judge and his or her staff will also be able handle and store the material electronically and send orders entered directly from their computer. It is an impressive advancement that has the added benefit of also reducing the volume of paper copies required to conduct a hearing. Judge Reyes volunteered to test the eCourtesy Copy Program in his own section. After successfully improving the efficiency in his division, the AO enlarges and expands the eCourtesy Copy Program to include other Judges. The program will first be expanded to the Circuit Civil Division and then to the other Divisions of the Circuit. The planned rollout is to add four Judges every month or so, depending on the ease of implementation. So how does the system work? Conveniently enough it is all driven by our professions most significant new form of communication--the ubiquitous e-mail. The SharePoint system allows for multiple e-mail addresses for each Judge. Judge Reyes requested e-mail addresses for the following four categories: Motion Calendar; Special Set Calendar; Emergency Motions; and Proposed Orders. The materials the attorneys submit to the Court are submitted via e-mail to one of these e-mail addresses for each of the Judges pre-

On September 27, 1949 Harry Truman was president, Dade County's population was under 500,000 and much of the county was undeveloped. On that same day a young lawyer named Thomas H. Barkdull, Jr. joined the DCBA. The Florida Bar did not exist as an integrated bar at that time. There was no intermediate appellate court in the Florida Court system at that time. While I cannot tell you what lawyer Barkdull's goals were in 1949 I am sure it did not include becoming the Chief Judge of The District Court of Appeal for the Third Districtbecause that court did not even exist until 1957. On September 24, the Third District Court of Appeal hosted a Ceremonial Session In the memory of the late Chief Judge who passed away in July. A remarkable group of speakers discussed Chief Judge Barkdull including Chief Judge Juan Ramirez and Judges Gerald Cope and Alan Schwartz along with former Florida Attorney general Bob Butterworth, former governor's Counsel Dexter Douglas and former Florida Bar President Burton Young. All expressed their great admiration for Judge Barkdull and explained the enduring impact of his thirty five years of service on the Court. As Chief Judge from 1963 until 1976 Judge Barkdull lead the efforts of the Third District to find the property where the Court is today and to supervise the construction, His Son the Honorable Thomas Barkdull, III remembered visiting the construction site on weekends with his father who made sure the building was being built as planned. It seems very appro-


SEE "Eleventh circuit ..." PAGE 5



Build your client base through the Dade County Bar Association's NEW Lawyer Referral Service. The DCBA has been providing legal assistance to the public pro bono for more than 94 years. As a result, the community looks to the Association for legal assistance. Each year, DCBA staff field more than 20,000 calls from the public with various legal questions and problems. In recognition of the high quality of services provided by the Dade County Bar Association, the Florida Bar has delegated administration of its Lawyer Referral Service, or LRS, to the Association. Calls to the Florida Bar's LRS will be answered by a Dade County Bar Association staff member who will take the client's name, address and telephone number, and basic facts about their case. The LRS staff screens each call to determine if the caller should be referred to an attorney. Only callers who are able to pay an attorney to handle legal matters are referred to LRS panel members. Callers unable to afford attorneys' fees are guided toward community pro bono services or to attorneys in the LRS Low Fee Program. When appropriate, staff refer callers to community resources for non-legal help. To join the LRS, call at (305) 371-2646, or you can find the application and rules on the Association's website


Dade County Bar Association





By: Mark Eiglarsh

"Stops, Searches and Seizures--Know Your Rights" Bad Day for Bozito the Clown

DADE COUNTY BAR ASSOCIATION Board of Directors 2010-2011


On a gloriously sunny day in Miami Beach, Bozito the Clown and his pet monkey Maurice set up shop on a public patch of land near the boardwalk. The diminutive clown and his primate friend lived to bring smiles to the faces of young children. Bozito, with his cliché painted face, colorful costume and floppy shoes, attracted a crowd by making balloon animals for the kids and flawlessly performing cartwheels and flips. Maurice, in his bellhop outfit, would smoke cigars, ride his little tricycle and collect money from spectators. Naturally, onlookers were terrified. Many children began crying after being subjected to this disturbing imagery. One parent ran to Collins Avenue to flag down a patrolling police cruiser driven by Officer Killjoy. "There's a midget clown over there making our kids cry," she exclaimed. "Thank ya, ma'am, I'll take care of this." Officer Killjoy, a rookie cop who took his job too seriously, parked and waded through a mass of sobbing children, finally approaching the visual nightmare with hand on holster. "Freeze, freak!" Officer Killjoy pointed his gun at Bozito, who pointed at the sky with his stubby arms. Maurice proceeded to throw a pie at Killjoy's face. Embarrassed, Officer Killjoy wiped off his face and handcuffed Bozito and Maurice. As he was dragged to the cruiser, a confused Bozito asked, "What is this all about? I have a permit...and my monkey has papers, I have all the documents stored away in my oversized shoes!" "I don't care, and I'm arresting you and your little friend for making those kids cry, and for being a clown, wise guy. Nobody likes clowns." Bozito's little heart was broken. Stops, Searches and Seizures for the Man on the Street Even though the home is one's castle, rights don't disappear when stepping onto the street. Over the course of a lifetime, most people will have a few "casual" encounters with law enforcement in public. The Fourth Amendment of the U.S. Constitution and Article I, Section 12 of the Florida Constitution govern these encounters and require that searches and seizures are "reasonable." The scope of protection offered is identical in the two constitutions, and Florida's Section 12 explicitly states: "This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." This is convenient for law enforcement and citizens, who need only be aware of one set of rules, but is not necessarily loved by defense lawyers since if it chose to, Florida could grant greater individual protections. This is because the federal Constitution only sets a floor with respect to individual rights. There are three critical moments during interactions between an officer and an individual: 1) The officer's observations and approach; 2) The stop; 3) The search, seizure or arrest. While events typically proceed in this order, countless hours are spent in court arguing under which category a situation falls. This is because as the encounter proceeds from an observation to a search or seizure of the person (arrest), the officer's level of sus-


picion must increase. No suspicion is required for an officer to observe, and a warrant is typically required for a search or seizure. As the officer's level of suspicion increases, the individual's right to move and enjoy privacy decreases. For example, Officer Killjoy could have calmly and legally approached Bozito and asked, "Excuse me sir, may I see your permit or that cute monkey's papers?" However, at the moment Bozito did not feel free to leave the presence of the officer and definitely by the time he was handcuffed, he was "seized." Here, Killjoy did not directly observe any illegality when he approached Bozito and Maurice. He slapped handcuffs on the poor clown and arrested him for little more than mild primate malfeasance and ruining the day of a few small children. In order to do this legally, in an ideal world, he would need to get an arrest warrant from a neutral magistrate. However, this process takes time and an officer can also arrest or search a person if there are "exigent circumstances" and action must be taken to protect the public, if a crime occurs in the presence of an officer, or if the person consents. People are often intimidated by law enforcement and should know that denying consent to a search or seizure is a right, and that this denial itself cannot arouse further suspicion by law enforcement. There is a middle ground between observation and seizure created by the Supreme Court in the landmark case, Terry v. Ohio, 392 U.S. 1 (1968). It is reasonable for an officer to stop and frisk if the officer has a reasonable suspicion that the person is engaged in crime and may be armed, even if the officer does not have consent or probable cause. The "may be armed" requirement disallows the police from using stop and frisk as a pretext for simply finding drugs or evidence not connected to violent crime. There is no fast, easy and workable definition of "probable cause" and "reasonable suspicion," but it is important to understand that reasonable suspicion is a lower standard than probable cause. Since a reasonable officer in Killjoy's situation would not have had reasonable suspicion that an apparently harmless clown and monkey were going to physically harm onlookers, a stop and frisk would not have been justified. While the Fourth Amendment protects us and Bozito from unreasonable searches or seizures, it states that this right "shall not be violated" without explaining remedies for violation. The courts have filled this gap by implementing the exclusionary rule. If Bozito was found to have drugs in his floppy shoes during a search by Killjoy after the illegal arrest, a good defense lawyer would have that evidence excluded since his rights under the Fourth Amendment and Article I, Section 12 were violated. Professor Amar at Harvard believes that the Constitution imposes civil liability on officers who execute unreasonable searches or seizures, but this argument has not gained any traction since the government is cash-strapped and the courts have determined that officers, who are not paid enough as it is, are immune from paying hapless fellows like Bozito. It's never a good idea to break the law, or make young children cry. But every man, woman, clown and monkey should know his, her or its rights. About The Author Mark Eiglarsh is a former prosecutor who handles exclusively State and Federal criminal defense and forfeiture matters. An "AV Rated" attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at [email protected] His web address is


JUDITH M. KORCHIN, ABA Delegate 2008-2010 DADE COUNTY BAR ASSOCIATION YOUNG LAYWERS SECTION BOARD OF DIRECTORS 2010-2011 OFFICERS Stephanie L. Carman, President Sorraya M. Solages, President-Elect Suzette L. Russomanno, Secretary Lisa M. Pisciotta, Treasurer 2009-2011 DIRECTORS Geri Fischman Bradley Kaplan Jacqueline C. Ledon Amy J. Santiago Andrew B. Thomson Michael Trauben Ethan Wall 2010-2012 DIRECTORS Darlene Corey Rene J. Garcia Jr Adilia Quintana-Hedges Monica Rossbach Adam Shapiro Joanna Thomson Barbara A. Zambrano



On the morning of Tuesday, December 14, 2010, approximately 250 high school students representing 8 local schools will gather in downtown Miami to test their understanding of the United States Constitution. The date marks the first round of the national "We the People" competition. Since 1987, more than 26 million students have participated in this program funded by a special act of Congress. Several times in the last ten years, a high school from Miami-Dade County won the final round, which takes place in the old Senate chambers in our nation's capital. This program has proved an enduring success only because lawyers like you continue to volunteer and share their time and talent serving as judges. Please consider volunteering this year if your schedule permits. For a manageable time commitment of only a few hours, you can serve as a role model for high school students, receive 2.0 general CLE credits from The Florida Bar, eat bagels, and share some Constitutional values with a rising generation of Americans. To volunteer and for additional information please contact: Thomas Logue, Tel.: 305-375-5067, Email: [email protected]

BULLETIN COMMITTEE Roger Slade, Chair Oliver A. Ruiz, Vice-Chair 123 NW First Avenue #214 Miami, Florida 33128 305-371-2220 EX ­ OFFICIO Sookie Williams



As we start the holiday season, I wanted to alter you to volunteer opportunities in connection with the DCBA YLS' Pro Bono & Community Service Committee. The Committee coordinates public service projects and provides young lawyers with the opportunity to give back to our community through pro bono and community service. As lawyers, we are in a perfect position to make a difference in the lives of other members of our community. As the Committee Chair Ethan Wall explained, "The Pro Bono & Community Service committee is designed to provide young lawyers with opportunities to use their abilities to effect positive change in their community and to help those in need."

Dade County Bar Association Young Lawyers Section

3rd Annual Co-ed Kickball Tournament


Tropical Park Saturday, October 30th, 2010

Kick off starts at 9:00 am

The Committee offers these opportunities through several community service and pro bono events. For example, in September, the Committee (and our Girls Horizons Committee) participated in the Ocean Conservancy's 25th Annual Coastal Clean Up which was co-sponsored by the YLS. Committee members removed debris from our waterways and raised awareness of marine pollution. Bi-monthly, vice chair Jacqueline Ledón engages our members in the Put Something Back Small Claims Clinics sponsored by the Legal Aid Society and Legal Services of Greater Miami, Inc. The Small Claims Clinics take place on the second and fourth Tuesday of each month and provide invaluable aid to the low income community in Miami-Dade County. As Ms. Ledón explained, "the Small Claims Clinics are an excellent way for attorneys to earn pro bono credits while giving back just a few hours of their time to provide guidance to pro se, low-income litigants." On December 2, 2010, the Pro-Bono Committee will co-sponsor with the YLS' Social Committee our annual Holiday Party hosted by Coconut Grove Bank to introduce young lawyers to non-profit organizations and collect toys for children in need. The event will be open bar and passed hors d'oeuvres and take place from 6 to 9 pm. The only "fee" for entry is an unwrapped toy. Social Committee Chair, Monica Rossbach believes "the annual Holiday Party is the perfect mix of ringing in the holiday season with colleagues and friends while doing good for those less fortunate." More plans are underway and I encourage you to get involved. As Mr. Wall explained, "Our committee is a terrific way for young lawyers to give back to the community, strengthen their leadership skills, and network with young leaders in our community. We encourage all young lawyers to get involved in planning our Community Service Day and Law Week programs." To join the Pro Bono & Community Service Committee, please contact Committee Chairs Ethan Wall at [email protected] and Jacqueline Ledón at [email protected], and for the Social Committee, please contact Monica Rossbach at [email protected] Finally, I want to remind you about our annual Bids for Kids Event. On Thursday, November 18, Sabadell United Bank will sponsor our annual fundraiser benefiting the YLS children's programs. This is a perfect opportunity for networking and contributing to programs that make a real difference in the community. We are actively recruiting sponsors and auction items. To date, firms and individual including Berger Singerman, The Biondo Law Firm, P .A., Gisela Munoz, GrayRobinson, Hogan Lovells and Stearns Weaver have graciously agreed to sponsor the event. Additionally, we have some wonderful auction items, such as an airplane ride from Panter, Panter & Sampedro, P .A., gift certificates for restaurants, personal boxing training sessions, personal hip hop dance lessons, salon and spa services, personalized professional photography sessions, professional business coaching sessions and sporting event tickets. It is sure to be a wonderful night so please join us! If you would like to sponsor Bids for Kids, donate an item, assist with event planning, or if you have suggestions for possible donations or sponsors, please contact Alice Sims at the Bar Office (305) 371-2220 or me at [email protected] I wish you and your families a happy and healthy Thanksgiving. Warm Regards, Stephanie

All proceeds benefit our Homeless Outreach Committee Space is limited Double elimination

$350 entry fee includes food and drinks

Please complete the form below and mail by Friday, October 15, 2010. Make checks payable to:

Dade Community Foundation 123 NW First Avenue, Suite 214 Miami, Florida 33128 Questions? Contact Adam Shapiro at [email protected] or Mike Trauben at [email protected]

---------------------------------------------------------------------------------------------------Team Name: Contact: Telephone: E-Mail:

Brought to you by the Sports Committee of the DCBA/YLS Committee Chairs, Adam Shapiro and Mike Trauben


On Saturday, September 25, the Dade County Bar Young Lawyers Section's Pro Bono & Community Service Committee par ticipated in the Ocean Conservancy's 25th Annual International Coastal Cleanup. The Committee lead a group of YLS members, law students, and guests who volunteered their time to remove debris from Crandon Park on Key Biscayne and to raise awareness of marine pollution. Committee Chair Ethan Wall (Richman Greer, P .A.) and committee members Mercedes Pino (St. Thomas School of Law) and Michael Capiro (Michael A. Capiro, P .A.) planned the Coastal Clean Up on behalf of the committee. The Pro Bono & Community Service Committee coordinates public service projects and provides young lawyers with the oppor tunity to give back to our community through pro bono and community service. For more information about the Committee, please contact Ethan Wall at [email protected] or call 305-373-4050.

This Month's Featured Member Benefit

Discount Savings

The Hertz Discount Savings offers up to 10% savings off car rentals, up to $15 off a weekend rental and $20 off a weekly rental wherever your travel takes you, close to home or around the world. How can you start receiving this wonderful benefit today? Contact the DCBA at [email protected] and type in Hertz Discount Savings in your email subject line or call (305) 371-2220 and we will be happy to provide information.

From left to right (top row): Rana Hemantharaju (STU), Vladimir Larios (STU), Christine Reuss (STU), Ethan Wall (Chair,) Mercedes Pino, Darlene Corey (YLS director), John Ainswor th (UM), Lauren Sutphin (UM), Shawn Sutphin (guest). (bottom row): Gabriela Mancebo, Michael Capiro.



On Wednesday, September 8, the Dade County Bar Association hosted the first general membership luncheon of the 2010-2011 year at the Hyatt Regency Hotel. The guest speaker was The Honorable Ricky Polston, Florida Supreme Court Justice.

Andy Bernstein, Ronald Ravikoff, and Karen Ladis, Coordinator Put Something Back

Joshua Coller and Bernard Jennings

John H. (Jack) Hickey, past president DCBA, and Garrett Biondo, Vice-President DCBA

Herman Russomanno III, Treasurer DCBA, Honorable Ricky Polston, Florida Supreme Court Justice, and Steven Davis, President DCBA

Jane Muir, Director DCBA , Michael Ambrose, Christina McKinnon, Director DCBA

Steven Davis, Honorable Joseph P. Farina, Merrick Gross, past president DCBA

Bernard Jennings, George Wickhorst III, and Jennifer G. Sniffen

Jezabel Llorente, Kai E. Jacobs, Stephanie Kwan, and Erin K. Loeb

Robert J.Fiore, past president DCBA, and Honorable Peter R. Palermo

Sharon L. Langer, Director of Legal Aid, and Andy Bernstein

Jacquelyn P. Needelman Director DCBA, and Dennis G. Kainen, past president DCBA

Honorable Raoul Cantero III, Honorable Juan Ramirez, Jr., Raquel A. Regalado, and Oliver A. Ruiz

David M. Rogero, and Andrea S. Hartley, President-Elect DCBA

Mayra Joli and Steven P. Befera, past president DCBA

Honorable Richard Suarez, Honorable Valerie R. Manno Schurr, and Honorable Gloria Gonzalez-Meyer

Amy Melia, Coordinator - DCBA Lawyer Referral Service, Eileen Coto, and Emilique Hernandez, Legal Aid

Guest Speaker, Honorable Ricky Polston, Florida Supreme Court

Christina McKinnon, Damian E. Thomas, Director DCBA, Arthur J. Jones, and Monica D. Barnes

Sonja K. Dickens, Marva L. Wiley, Tanya J. Brinkley, Honorable Joseph P. Farina, and Monica Barnes



The Dade County Bar Young Lawyers Section Social Committee hosted its "Chat It Up at the Chophouse" membership mixer on Thursday, September 23 at Chophouse Miami. Committee chairs Monica Rossbach (Berger Singerman) and Ethan Wall (Richman Greer) greeted DCBA members, judges, and newly admitted attorneys to the Florida Bar to the first YLS networking mixer of the season. The Judicial Outreach and Professionalism & Membership Services Committees co-sponsored the event. The committees would like to thank all of those who attended and hope to see you all at future events. Vincent Duffy, Manny Guarch, Brent Jostad, Rick Maleski

Monica Rossbach and Ethan Wall, DCBA YLS Directors

Marcy Marcus, YLS President Elect, Sorraya M. Solages, Rotem Adar, and Emily Bradfute

YLS President Stephanie L. Carman, Honorable Jacqueline Schwartz, Richard Schiffer, and Sorraya M. Solages

Joy C. Harrison, Evan B. Berger, and Alisa Taormina


from page 1


The Dade County Bar Association Professional Committee presented "Incivility at Depositions and Abusive Deposition Tactics" on Tuesday, September 28th at the Bankers Club. The panel was moderated by DCBA Director Barbara Viniegra. Guest Speakers included Honorable John W. Thornton, Jr., Honorable Barbara Areces, Richard C. Milstein of Akerman Senterfitt, Maria J. Santovenia from the North Miami Beach City Attorney's Office and Ena T. Diaz.

fixed by the particular judge's section number. For example, [email protected], [email protected], etc. On the Court's end, the SharePoint system creates a file based on the subject line of the e-mail. The file that is created will contain the documents attached to the attorney's e-mail. The Judge simply opens the file to review the materials submitted. SharePoint also allows the Judge and his staff to organize and manage the particular calendar that he or she is hearing that day. For motion calendar, for example, the Judge's staff can check attorneys in for calendar and the Judge will have the information on his or her screen. Once the attorneys are called for hearing, all of the courtesy submissions sent to the Judge will be in a file that is just a mouse click away. Since the submission of motions and orders must be made in Word or WordPerfect format, the Judge can easily make notes or mark areas where he or she may have questions. Judge Reyes uses different colors to highlight questions for plaintiff and defendant. An additional benefit of the SharePoint system is that email alerts can be included as part of the system. Judge Reyes has an e-mail alert set for all e-mails received at his emergency-motion e-mail address. Like every other technological change, however, attorneys and their staff will have to learn the new system. Fortunately, it is not complicated. The AO is carefully worded and contains very specific and clear instructions that must be followed to insure that the documents included in the e-mail are accessible to the Judge. Probably the single most important element of the new system is also the simplest to follow--the format of the subject line of the e-mail. Because the file for the motions, orders and any accompanying materials are all created by SharePoint based on subject line of the e-mail, the naming conventions in the AO must be followed exactly as set forth in the instructions. For example, the e-mail address for submissions to Judge Reyes's motion calendar is, intuitively enough, [email protected] For motion calendar submissions the SharePoint file for each submission is created by the motion calendar date. The format for the motion calendar date in the subject line of the email must be strictly followed: nothing tricky about this, but Judge Reyes says he still gets the wrong formats for the date. Why is it so important to follow the specific naming convention for subject line in the e-mail? It is important because, as noted above, SharePoint creates a file for the materials attached to the e-mail based on the subject line. Therefore, when Judge Reyes opens up his file for a particular motion calendar to prepare for calendar, he will open 09/06/10 (the fictional Labor Day motion calendar). And lo and behold, only motions and materials that were sent using the proper format MM/DD/YY will be included in that file. Motions submitted to the Judge with an improperly-formatted e-mail subject line such as "Sept. 06, 2010," "09-06-10," "09-06-2010" (and so on and so forth, you get the picture) will not be in the file that includes the motions for the 09/06/10 motion calendar. Judge Reyes explains that what will happen is that counsel will show up and his or her motion will not be in the file for that motion calendar date. The other e-mail addresses for Judge Reyes' division are: · Special set hearings, [email protected]; · Emergency motions, [email protected]; and · Proposed orders, [email protected] The format for e-mail subject line in these motions and proposed orders is not based on the date of the hearing but rather on the case number. And again, the format must be strictly followed. The case number for the subject line must be formatted as follows: the year as two digits, i.e. 08, 09, 10 etc., no problem here. The hyphen follows, then--and this can be the tricky part--no zeros are included after the hyphen until after the first non-zero number in the sequential case number. I'll illustrate: if the case number is 09-015404, the subject line of your e-mail will be 0915404. The naming convention eliminates only the zeros immediately preceding the sequential case number. The one issue I had with the otherwise clear instruction is the statement emphasizing: Do not use zeros after the hyphen to fill in the sequential case number. Some careful attorneys or their staff might understand this to mean that case number 09-0015404 would become 09-1544, no zeros after the hyphen, right? Wrong! Only the zeros leading the sequential number are eliminated. Therefore, 09-0015404 becomes 09-15404. Again, and at the risk of belaboring this point, the files in the SharePoint system are created based on the subject line of the e-mail. If the e-mail subject line is not properly formatted, the Judge won't see the materials attached to that e-mail.

Honorable John W.Thornton, Jr., Honorable Barbara Areces, Ena T. Diaz, Barbara Viniegra, Maria J. Santovenia, and Richard C. Milstein


Group photo ­ YLS Director Darlene Corey, YLS Kids Club Committee Chair Barbi Zambrano, Nicky Lopez, Mercedes Pino, Andres Correa, Giselle Jorge, Michelle Jorge, Ian Ian Mcllroy, Toufic Zakharia, Alex Uriarte

The format of the name of the documents attached to the e-mails is also important because this is what the Judge will see in the file. The instructions in the AO provide that the document should be named with the case number (using the same format as for the e-mail subject line) and the name of the document. To continue the previous example, if you are filing a summary judgment motion in case 090015404, the name of the motion would be "09-15404 Plaintiff's Motion for Summary Judgment." Firms with document creation systems that generate a sequential number for new documents will need to rename the documents in accordance with the format required. One of the early problems the Judge encountered during the eCourtesy Copy Program was sifting through improperly named documents. The SharePoint system also allows the Judge to send facsimile transmissions from his or her Outlook. Judge Reyes considers this one of the most important advantages. Attorneys submitting proposed orders must include, at the bottom of the order, the facsimile number of every attorney entitled to receive a copy in a very specific format: [fax:[email protected]]. Judge Reyes explains that the reason for being so specific is that when set in the proper format, the Judge or his staff can simply copy the facsimile into the "To:" or "Cc:" line of an e-mail and send the facsimile transmission straight from his or her computer. If not properly formatted, the Judge would have to retype the facsimile number into the e-mail. This is just a primer on the new system. As Judge Reyes emphasizes, attorneys and their staff must read the AO and the instructions included therein carefully.





by Jane W. Muir and Hector J. Lombana





Plaintiffs win tort trials far more frequently than they win medical malpractice trials. Why is it that juries fail to award damages for injuries in medical malpractice cases? According to the Insurance Information Institute, a study of almost 11,000 medical malpractice trials between 1985 and 1999 found that provider-defendants won approximately 81 percent of the time. A Bureau of Justice Statistics study of medical malpractice cases tried in large counties across the United States in 2001 found that provider-defendants won approximately 73 percent of the time. By contrast, the study reports that plaintiffs won 52 percent of all tort trials in its sample that took JANE W. MUIR place in 2001. The remarkably high defense win rate in medical malpractice cases may be attributed to any number of factors, but the results should serve as a lesson to those attorneys who consider taking on medical malpractice cases: case selection is key. Although the procedure for handling a plaintiff's medical malpractice case in Florida is explained by Section 766 of the Florida Statutes, any potential claim carries its own set of pitfalls to be avoided. Practical concerns prevail over legal and procedural issues in the field of medical malpractice. Selection of a case should depend on the nature and extent of the damages, the identity of the claimants and defendants, and the statute of limitations. However, during the preliminary investigation of a potential claim, an attorney must consider the case skeptically. There is a strong correlation between the merits of a malpractice case and the likelihood of recovery. The fundamental questions an attorney should ask himself during the case selection phase are "Who cares?" and "So what?" The nature and extent of damages is the first question an attorney must address in deciding whether to select a case. Medical malpractice cases require a significant investment of time and money to prosecute, and without significant damages, it is difficult, if not impossible, for an attorney to recover that investment. Therefore a thorough interview is key. In the preliminary interview, question the client about his injuries and associated losses. This anecdotal description will give the attorney an idea of how the client will perform as a witness. However, an attorney should not accept words alone as indication of the extent of a potential client's damages. It is necessary to collect medical bills in order to substantiate that the client has indeed paid dearly for a severe injury with objective data. Ultimately, the attorney's goal is to confirm that a judge or jury would be appalled by the client's injury and award corresponding damages. Secondly, the attorney must evaluate the client and identify other potential claimants. The age and health of the client impact the damages. A childless woman of twenty will suffer greater damages than a fifty-year-old mother of five should she require a hysterectomy as a result of a malpractice. Again, the client may be able to describe his condition prior to the injury persuasively. Even so, it is a good idea to identify objective sources to confirm the client's state of health and wellbeing prior to injury. Friends from a recreational sports league, attendance records at a gym and the primary care doctor's records are all good sources to confirm a client's good health prior to injury. The primary claimant is sometimes accompanied by others who were collaterally injured by the malpractice. Florida's

Wrongful Death Act permits a spouse and any children under the age of 25 to join in a suit. It is important to identify all potential claimants, as well as their strengths and weaknesses as witnesses. When the damages and claimants have been identified, the investigation must turn to the defendants. Defendants may include any medical professional that treated the client, such as nurses, technicians, and doctors. The health care facility may be another defendant, or may be the primary defendant in some cases. The interaction of the various health care providers that were involved in a malpractice that caused severe injuries to the claimant may HECTOR J. LOMBANA also give rise to issues of sovereign immunity that may bar suit. It is possible that even with an outcome in the claimant's favor, damages are not recoverable because the health care provider does not carry malpractice insurance. However convincing the claimant may be in the initial interview, the defendant may be a more charming witness or have a more attractive story. When selecting a case, these are issues to consider and investigate. When the potential claimants and defendants have been identified, the final concern before accepting a malpractice case is whether the statute of limitations or statute of repose is distant enough to complete the investigations required pre-suit. The critical moment is the date the alleged malpractice occurred or alternatively the date the claimant came to learn of the malpractice. Determining this date will inform you as to whether selecting the case would force you to race to beat the clock and complete exhaustive pre-suit notice and investigation requirements. To avoid the sprint it is advisable to file a Petition for Extension of Time under Section 766.104(2) of the Florida Statutes, which tolls the time to file a Notice of Intent by 90 days. Doing so will ensure a careful investigation and, in the event you choose not to continue the representation, will allow the claimant ample time to obtain another attorney's help. Because few malpractice cases statistically are won at trial, when dealing with case selection practical concerns prevail over legal and procedural issues. "Who cares?" and "So what?" are the two questions that will protect an attorney from making a poor choice in selecting a case. "Who cares?" is the question to ask yourself about the injury and the damages. If you are not appalled by the injury, the case is not likely worth taking. "So what?" is the question to ask about the claimant. If the claimant is not someone for whom the injury is truly debilitating physically and psychologically, then the case is still not a good choice. Both questions must have answers for an attorney to consider accepting a medical malpractice case. * Jane W. Muir is a civil trial attorney at Grinberg & Muir. A member of the Dade County Bar Association Board of Directors, she earned her J.D. from the University of Miami and a B.A., magna cum laude, from the University of Florida.

* Hector J. Lombana is a civil trial attorney at Gamba & Lombana who specializes in medical malpractice. A native of Havana, Cuba, Mr. Lombana is a past president and director of the Cuban American Bar Association, a member of the Inner Circle of the Hispanic National Bar Association, member of the American Board of Trial Advocates,

Dade County Bar Association Solo & Small Firm Committee

Presents "Grow Your Practice... Common Sense Strategies" More than a roundtable, it's a money making business development tool.


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Administrative Law, Government Relations: Bankruptcy Environmental, Zoning and Land Use: Litigation: a. b. c. d. e. f. g. Construction Business PI-Plaintiff Insurance Defense Medical malpractice Products liability Criminal h. i. j. k. l. m. Family Eminent Domain Employment Real Estate Securities Probate

Paula Black's Roundtable Meeting... is your opportunity to learn the proven strategies that get results. In a select fourteen-member, intimate setting, every participant has the potential to be your referral source. Only one attorney from any practice area will be admitted.

Don t miss your chance to take your practice to the next level with Paula Black s Marketing Roundtable for Lawyers... and receive 4 CLE credits.

You will have a unique opportunity to network and discover how to: 1. 2. 3. 4. 5. 6. 7. Build credibility and become the recognized expert in your world. Increase your Internet presence. Set yourself apart from the competition. Take networking to a new level. Start to develop a single intriguing statement that tells people what you do. Turn your referral sources into a money making machine. Create a marketing habit that will keep your pipeline consistently filled with new business.

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Immigration: Intellectual Property: International Law: Real Property: Corporate Law: a. Tax b. Banking c. Business practice- general

SIGN UP BY SEPTEMBER 15TH FOR THIS HALF-DAY ROUNDTABLE AND RECEIVE: A FREE one-hour one-on-one strategy session with Paula Black and... A FREE Feedback Consultation... Send Paula a copy of your bio, presentation, or any marketing piece and she will give you feedback on how to make it a stronger marketing vehicle.

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Wills and Estates: Mediation: Admiralty/Martime: Franchise: Aviation:

Special Offer: Sign up now to receive the Dade County Bar Association member

special rate of $295. Remember only one lawyer from any practice area will be admitted. Make a commitment to grow your practice... call (305) 371-2220 to reserve your seat and practice area today! A list of the practice areas is located below.

Date: November 4, 2010 Time: 8:30 A.M. ­ 1:00 P.M. Serving Continental Breakfast Where: The Dade County Bar Association Conference Room

Advance registration is required. Please contact the DCBA offices at 305 371-2220. Space is limited to the first 14 DCBA members, one in each practice area. If you are not a DCBA member, you can join and register at the same time.


Business Divorce: Breaking Up is Hard to Do

Eduardo ("Ed") R. Arista, CPA, Esq.

It has been said that a business partnership is much like a marriage. As in some marriages, hard times can uncover fundamental differences that were previously ignored when business was booming. These scenarios range from "cold shoulder" formalization of decision-making procedures, heated exchanges of demand letters to aggressive litigation. Sometimes a neutral mediator brings the feuding partners to a better understanding of how to move forward with their business relationship, or at least salvage as much value while unwinding their affairs. When representing individuals involved in a business partnership gone awry, the following is a list of issues that should be initially explored in order to effectively represent either one or both of the parties. Fiduciary Duties. Who has a duty and to whom is it owed? Regardless of what co-ownership agreements might say, certain individuals may owe a duty of loyalty to minority interests and others.

both cases, courts often appoint a receiver to recommend and oversee a plan of liquidation.

Tax Implications. A good CPA should be consulted to determine, among other things, the tax impact of a complete or partial liquidation, substantial change in ownership, recapitalization or any reorganization resulting in multiple entities. Once the tax impact has been quantified and minimized, who pays the tax becomes yet another negotiation point.

Continuation of the Business. When one or more parties will continue to operate the business while others EDUARDO R. ARISTA will not, numerous additional issues should be considered, such as non-disclosure and confidentiality agreements, as well as non-competition and non-disparagement agreements; whether the departing owner's assistance will be required post separation and how or whether to compensate for the same; indemnifications and general releases, etc.

Co-Ownership Agreements. At this juncture, your client might regret not executing a better shareholder/partnership/operating agreement. In any case, make sure to understand the default rules that apply to the business relationship when there is no agreement or the agreement is silent. Also, beware of relying on provisions in a form agreement that may actually be unenforceable because they are trumped by various overriding business statutes or case law. Notices, Voting, and Meetings. Unless properly waived, these formalities can be a minefield. When receiving a notice, consider whether and how to respond and then act very carefully lest you waive some of your client's rights. Those in control of the business must understand that just because they have the right to do something, that does not mean their actions may be voidable for lack of following certain formalities. Right to Inspect Books and Records. While these rights can turn out to be quite limited, no business entity in Florida is allowed to deny a proper request to inspect books and records.

Personal Guarantees. Closely held business owners often personally guarantee one or more of their business's obligations. If one party agrees to assume the entire obligation, the separation agreement should provide for some form of indemnification, and / or hold harmless. Unless the lender expressly releases any guarantor in writing, the indemnified party must have realistic expectations in terms of the costs of enforcing their right to indemnification should it become necessary, and estimate the potential for collecting any judgment that may result.

Trusted Intermediaries. The business' banker and accountant should be unbiased, neutral, and, therefore, helpful in resolving disputes amongst business owners or at least orchestrating the financial aspects of a breakup. However, clients must be warned that documents and communication exchanged with the trusted intermediary could be discoverable in subsequent litigation. Moreover, the intermediary's own professional obligations to be conservative, objective and impartial usually require they refrain from advocating for your client's interests when they might be in conflict with the interests of the business and the other partners. Friends & Family. Doing business with friends and family can be very rewarding, but always adds another dimension to the relationship. Explain your client's legal rights and obligations, while never losing sight of the diplomatic, political, and emotional aspects of who you are dealing with and what they really want.

Right to Redemption. Unless specifically provided for in your co-ownership agreements, many business entities cannot unilaterally buy out an owner. Conversely, owners do not necessarily have a right to be "cashed out" on demand.

Transfer Restrictions. Different entities have different rules governing how and when a business owner can transfer their interest, if at all. Some of these rules can be overridden by a written agreement, and certain transactions can trigger a limited window to demand to be bought out at fair market value. Liquidation vs. Dissolution. If everyone is in agreement as to who gets what and who will assume any remaining liabilities, a plan of dissolution should be prepared to help obtain closure from a legal standpoint. Certain filings must be made with the Florida Department of State and notices must sometimes be sent to creditors. Liquidation is the process whereby the business is actually wound down, the assets distributed and the books closed. Judicial Dissolution: Voluntary vs. Involuntary. Voluntary judicial dissolution happens when the owners jointly petition the court to decide how to liquidate the business. When the owners cannot even agree that the entity should be dissolved in the first place, certain circumstances will support a unilateral petition for the court to involuntarily dissolve the company. In

Estate & Financial Planning Impact. Closely held businesses are often a major component of their owners' overall wealth. Departing and remaining owner(s) can sometimes agree on structuring their deal in mutually beneficial ways that maximize the value of the departing owners' compensation while simultaneously boosting the value of the remaining owners' equity in the business. Both parties should update their estate and financial plans to adjust for what is typically a major shift in their wealth portfolio. These are just some of the legal issues involved in planning for a business separation. The chances of closing the transaction amicably will mostly depend on the existence and quality of co-ownership agreements, as well as the goal-orientation and professionalism of the attorneys. * Eduardo ("Ed") R. Arista, CPA, Esq. maintains a sophisticated transactional, tax advocacy and wealth preservation practice for domestic and foreign businesses and high-net worth individuals. Mr. Arista is also an adjunct professor in the F.I.U graduate tax program. E d @ A r i s t a L a w . c o m - (305) 444-7662 ­ ww w.A rist aL aw .com



DCBA/YLS Holiday Mixer

Mix and mingle with YLS members while learning more about our community's pro bono organizations!

Date: Time:

Thursday, December 02, 2010 6:30 p.m. - 9:30 p.m.


2701 South Bayshore Drive Miami, Florida 33133

Free Beer, Wine, Hors D'oeuvres & Music! **Please RSVP by Monday, November 29, 2010 At or by calling (305) 371-2220 **

Complimentary Parking on Site off of Mary Street.


Please bring an unwrapped toy for a child in need.

Brought to you by the DCBA/YLS Pro Bono & Social Committee



NOVEMBER 2010 11/02 11/03 11/04 11/04 11/04 6:30 p.m. YLS Board Meeting ­ Hogan Lovells US LLP 6:30 YLS Pro Bono Community Service Committee meeting - Miami City Club 8:30 a.m. Marketing & Referral Network Seminar featuring Paula Black - DCBA 12:00 noon Lunch with the Judges: Judicial Circuit and County Court Judges: The Honorable Don Cohn, the Honorable Scott J. Silverman and the Honorable Victoria Del Pino. -The Bankers Club 6:00 p.m. FRP Committee Meeting 11:30 am General Membership Luncheon Hyatt Regency Downtown Miami Speaker Wilfredo Ferrer, U.S Attorney for the Southern District of Florida 4:00 p.m. DCBA Board Meeting DCBA Closed In Observance of Veterans Day 3:00 p.m. ­ 5:00 p.m. - Third District Court of Appeal Fall Seminar/Reception 12:00 noon ­ 4:00 p.m. 7th Annual Minority Mentoring Picnic -Amelia Earhart Park 12:00 noon Probate & Guardianship Committee Meeting - Lawson Thomas Courthouse 12:00 noon Real Property Committee Meeting ­ Bankers Club 12:00 noon Professionalism Committee Meeting- DCBA 6:30 p.m ­ 8:30 p.m Business Outreach Committee- Goodwill Gathering of Attorneys and Certified Public Accountants ­ Mercantil Commercebank 6:00 p.m. ­ 8:30 p.m. Bids for Kids - Sabadell United Bank DCBA Closed In Observance of Thanksgiving Day

("The 19th Annual Nuts & Bolts of Divorce Seminar")

Presented by

The DCBA Family Courts Committee Young Lawyers Section


Legal Aid/Put Something Back


Honorable Sandy Karlan, Administrative Judge, Honorable Robert Scola, Maurice J. Kutner, Esq., Jacqueline Valdespino, Esq., Terry L. Fogel, Esq., Brian Rokaw, Esq., and Mark Martinez, Division Chief Family Clerk


11/09 11/10 11/12 11/13 11/16 11/16 11/16 11/16 11/18

Initial Client Interview, Discovery: Electronic Evidence, Re-Visiting Time-Sharing and Parenting Plans, Contempt-The Proper Way, Foreclosure, Modifications and Short Sales, Rule 2.420 on Confidentiality


Friday, November 19, 2010 Registration: 8:30 ­ 8:45 a.m. Seminar: 8:45 ­ 12:30 p.m.


Dade County Courthouse Courtroom TBA 73 W. Flagler Street Miami, FL 33130



4.0 credits, including 3.0 certification and .5 ethics, applied for. FREE for all attorneys who agree to accept at least one pro bono family law case from PSB; otherwise, the cost is $80.00 ($100.00 at the door).

-----------------------------------------------------------------------Cut-Along-Dotted-Line--------------------------------------Name Bar Number_________________________ Address Email___________________________________ City State Zip______________________ Firm Telephone_____________________________ I will attend and accept at least one pro bono case. I will attend. Enclosed is my check for $ ($80.00) made payable to Legal Aid/PSB. Return to: Put Something Back 123 N.W. 1 Ave. Miami, FL 33128 Ph: (305) 579-5733 Ext. 2252 Fax: (305) 372-7693 Email: [email protected] THIS SEMINAR IS GENEROUSLY SPONSORED BY SABADELL UNITED BANK

Dade County Bar Association November General Membership Luncheon


11/25-26 11/30 DECEMBER 2010 12/02 12/03

12:15 p.m. - 1:15 p.m. Business Law Committee Seminar: Demystifying the Securities Laws - A Practitioners Approach to Getting the Deal Done - Part 4-A" - Akerman Senterfitt One S.E. Third Avenue, 25th Floor 6:00 p.m ­ 9:00 p.m YLS Social and Pro Bono & Community Service Committee Holiday Party ­ Coconut Grove Bank 6:00 p.m ­ 8:00 p.m Intellectual Property Committee- The Patently Impossible Project To Benefit Legal Aid ­ Miami Science Museum 6:30 p.m. YLS Board Meeting ­ Hogan Lovells US LLP 4:00 p.m. DCBA Board Meeting 6:00 p.m ­ 9:00 p.m Membership Mixer ­ TBA 12:15 p.m. - 1:15 p.m. Business Law Committee Seminar- "Demystifying the Securities Laws - -A Practitioners Approach to Getting the Deal Done -Part 4-B" - Akerman Senterfitt One S.E. Third Avenue, 25th Floor 12:00 noon Probate & Guardianship Committee Meeting - Lawson Thomas Courthouse 12:00 noon - Workers Compensation Seminar ­ Lawson Thomas Courthouse 12:00 noon Professionalism Committee Meeting ­ DCBA

Wilfredo Ferrer, U.S. Attorney for the Southern District of Florida

Tuesday, November 9, 2010 11:30 am to 1:30 pm Hyatt Regency Miami Hotel 400 SE 2nd Avenue Miami, Florida

12/07 12/08 12/09 12/14 12/16 12/21 12/21


Advance Registration: $40 members $45 Non-Members $50 at the door

For reservations, please complete the bottom portion of this form and mail it with your check, payable to the Dade County Bar Association. Reservations may also be made by credit card, please call the DCBA offices at (305) 3712220. 11-9-10 Luncheon Meeting Dade County Bar Association Please print or type name 123 N. W. First Avenue #214 Miami, Florida 33128 Office Phone Enclosed is my check payable to the DCBA in the amount of $ reservations for the General Membership Luncheon on November 9, 2010.

Registration and additional information


Third District Court of Appeal Fall Seminar "Ethics and Decision Making: You Be the Judge."

A MULTI-MEDIA EXTRAVAGANZA AND INTERACTIVE PROGRAM BY Honorable David M. Gersten Honorable Richard J. Suarez Honorable Vance E. Salter November 12, 2010 3:00 p.m. sharp Reception Immediately Following Thomas Barkdull Third District Court of Appeal Building 2001 S. W. 117 Avenue Miami, Florida Advance Registration DCBA MEMBERS: $25 & $20 Law Students/Govt Attys $35 Non-Members $40 at the door - if space permits Advance Registration deadline is November 8th, 2010

2 Hours CLER Credit (2 Hour of General includes 2 Hour of Ethics Credits) applied for from The Florida Bar ---------------------------------------------------------------------------------------------------------------------------------------11/12/2010 3DCA Fall Seminar FOR CREDIT CARD RESERVATIONS CALL DCBA 305/371-2220






1111 Brickell Avenue, 30th Floor Miami FL FEATURING: VEGAS CASINO GAMES SILENT AUCTION HORS D'OEUVRES OPEN BAR WATCH YOUR EMAIL AND THE DCBA WEB CALENDAR FOR MORE INFO. Advanced Registration Members $40; Non-Members $50 Government/Public Interest & Judges $25 At the Door $50

Dade County Bar Association 123 N. W. First Avenue #214 Miami, Florida 33128

Please Print or Type Name Office Telephone _______ Fla Bar No ____________ payable to Dade County Bar


Enclosed is my check in the amount of $ Association for

reservations for the November 12 , 2010 Appellate Court Seminar.


July 2006

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