Board to discuss expert witnesses, advertising
Board to discuss expert witnesses, advertising
A recommendation on an evidence rule addressing how expert witnesses are qualified and a variety of advertising rules will be on the Bar Board of Governors agenda at its December 4 meeting in Naples.
The board will also receive a proposed rule addressing the use of outside attorneys to resolve medical and other liens in personal injury and wrongful death cases.
The expert witness issue comes to the board from the Code and Rules of Evidence Committee, which is recommending that the Supreme Court not adopt into the evidence rules a 2013 law approved by the Legislature amending F.S. Chap. 90, the evidence code. That law specifies that courts should use the “Daubert” standard — used in federal courts and around 35 states — in evaluating and qualifying expert witnesses instead of the “Frye” standard set by the Florida Supreme Court.
The committee recommended 16-14 that the court not adopt the law as an evidence rule.
Proponents — including the business community, defense lawyers, and public defenders — said Daubert is a better standard that prevents junk science from being used in cases and prevents frivolous lawsuits. Opponents — including state attorneys and plaintiff attorneys — said Daubert can be used as a delaying tactic to impose costs and time delays in cases and can require relitigating accepted scientific evidence and testimony in every case.
The board heard extensive pro and con presentations from committee members Wayne Hogan and David Jones at its October 16 meeting, and asked several questions. But it tabled debate and a vote on its recommendation until the December meeting.
CREC also recommended that the court not adopt in the evidence rules another controversial bill from legislators addressing expert witnesses in medical malpractice cases. That law requires that when addressing standards of care, expert witnesses must be in the same medical specialty as the defendant. A neurosurgeon, for example, could not provide expert testimony about the actions of an orthopedic surgeon, emergency room doctor, or family practitioner.
Committee members recommended not adopting that change by a 24-0-1 vote.
CREC recommended including in evidence rules a third bill on when an out-of-court statement by an elderly or disabled person is admissible in court.
On advertising matters, the Board Review Committee on Professional Ethics is scheduled to report on a revision to Rule 4-7.18(a), which among other things bans lawyer solicitation via telegraph and facsimile. The committee decided those restrictions were moot in light of a board decision in July to allow solicitations by text messages as along as all restrictions for direct mail solicitations were followed. Committee members are rewriting the rule to allow telegraph and fax solicitations with similar limitations.
The board is scheduled to vote on that at its January meeting.
The BRCPE will also update the board on its work to rewrite Bar rules to conform to a recent Supreme Court order that lawyers may not belong to private, for-profit referral services unless they are owned or operated by an attorney. The committee is also working to amend rules to comply with a federal judge’s ruling that the Bar cannot prevent non-certified lawyers from saying they are experts or specialists in ads if that is objectively verifiable.
On the lien resolution issue, the BRCPE is attempting to satisfy Supreme Court reservations about past attempts by the board to allow in Rule 4-1.5 lien attorneys to be hired at the conclusion of a case to negotiate lien costs, with the attorneys being paid a percentage of what they save the client. The court rejected the Bar’s first attempt, saying the attorney with the underlying contingency fee contract had the responsibility for negotiating those liens. The court strongly questioned the Bar’s revised amendment, which included that outside attorneys could be used only in extraordinary cases, in oral arguments earlier this year. That led the Bar to request a stay in that case – which was granted — while it considered further revisions.
Those changes are due January 15. New amendments provide definitions of extraordinary versus ordinary lien resolution services; require a disclosure at the outset of representation if the personal injury lawyer will not provide extraordinary lien resolution services; define the fee that could be charged for extraordinary lien resolution services; and require court approval of the extraordinary lien resolution fee if it together with the personal injury fee exceeded the contingent fee schedule.
On other matters, the Program Evaluation Committee will report on its review of the Bar’s certification plan and the Board of Legal Specialization and Education. The committee will also provide an update on its ongoing reviews of the procedural rule process, the Bar’s Lawyer Referral Service, and the Lawyers Helping Lawyers program.
And the Rules Committee will report on a rule amendment to allow those applying to be certified legal interns to practice as CLIs while awaiting their review by the Florida Board of Bar Examiners. The FBBE opposed that amendment.
The Small Claims Rules Committee and the Florida Probate Rules Committee will present their three-year cycle rule amendments for board review.
