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March 1, 2013
Letters

Justice Overton
As I read the various obituaries of the life of Justice Ben Overton, I thought of various other accomplishments of his life and character to be emphasized or praised.

He helped form the Dispute Resolution Section of the ABA and helped it grow into one of the healthiest and most active sections of the ABA.

He helped the country of Romania write a democratic constitution after the overthrow of the dictator Nicolae Ceausescu. Although Romania still struggles with its transition to a democracy, that constitution has served the country well, including during the summer of 2012 when the Supreme Court of Romania addressed a legislative attempt to remove the democratically elected president.

Justice Overton mentored many young lawyers and judges, and he was always diligent about responding promptly by emails to requests for help.

When his wife Marilyn was alive, he could often be seen up early at legal conferences bringing coffee to the room for her before attending early morning meetings.

I last saw him at a judges’ conference in September and, although a little more stooped, his broad smile, quick wit, and generous heart were present as always. This is the Ben Overton I admired and will remember.

Nancy Palmer
Daytona Beach

Lawyer Advertising
The Supreme Court of Florida recently issued new advertising rules to take effect on May 1. These rules for lawyers and firms apply looser standards for television, print, and billboard advertising but stricter standards for websites. However, I believe that overall these new rules are a dream come true for international scammers in our midst.

New Rule 4-7.11 (b) states: “This subchapter applies to lawyers, whether or not admitted to practice in Florida or other jurisdictions, who advertise that the lawyer provides legal services in Florida or who target advertisement for legal employment at Florida residents.” This definition of lawyer and a subsequent reference to the unlicensed practice of law are unfortunate, because the commentary of this rule allows foreigners with overseas law degrees to hold themselves out to be lawyers from another jurisdiction. The term lawyer in the rule should clearly indicate that a lawyer or a foreign attorney is an individual that has (1) a law degree from an ABA accredited law school and (2) has a valid license to practice law from a sister state of the union or territory of the United States.

In South Florida, the unlicensed practice of law is rampant in the area of immigration law and the international scammers have no interest in being a “foreign attorney” that makes an appearance pro hac vice as mentioned in the commentary to this rule and in Judicial Administration Rule 2.510.

Now under the new ad rules the international scammers only need to create a façade by opening a local office with the assistance or in partnership with a Florida attorney, use a tradename like “Inversiones Cheveres en USA a Law Firm,” hold seminars overseas, promote their bogus firm with glossy magazines using Florida politicians as local celebrities, and show pictures with patriotic American images and symbols.

This deceptive advertising should be sufficient for the international scammer to be able to make referrals and share fees with the local Florida attorney in a scheme based on affinity fraud. In closing, these new relaxed ad rules can become un relajo or a joke.

A.L. Brigononi
Coral Gables

(Bar Advertising Counsel responds: New Rule 4-7.11(b) is substantially similar to current Rule 4-7.1(c). Neither permit improper holding out nor the unlicensed practice of law. Both clarify that all lawyers who are authorized to provide legal services by other law or rule must abide by Florida’s rules when they advertise those authorized services. New and existing rules also prohibit deceptive and misleading advertising.)

E-filing
My practice includes real estate transactions and litigation. Access to public records is very important to me. By “public records,” I mean court records and recorded documents, and I need that access in several counties. It would be a service to me and, I’m fairly certain, many lawyers whose practices are similar to mine, if we did not have to deal with so many different web pages, search functions, permission requirements, etc., to get the information we need.

Just like the railroads figured out commerce would be improved by having all rail lines the same gauge, it seems to me that the clerks could come up with uniformity to access your records so that we don’t have to learn how to navigate around potentially 67 different websites and at least several different search engines.

Having reviewed the recent News article about e-filing, I decided to try a test run for filing a new case — a commercial foreclosure. I was informed by the program that I had to file a lis pendens, but do not understand why that is required — not that I don’t do it in every case. I was also told I had to have an accompanying affidavit that I think is not a requirement for a commercial foreclosure. The article in the News says that the portal supports Internet Explorer 8 or higher. What about Mac users? Are we disenfranchised?

If the Supreme Court can make us e-serve and e-file, can it not require uniformity among the clerks?

William Nussbaum
Jacksonville

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Why is the electronic filing system our state courts have adopted such a clunker when the federal court system is whizz-bang?

David Luther Woodward
Pensacola

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There is no good reason to make us change our passwords every 90 days in order to e-file.

I have been using Pacer in the federal courts for years now, and have never had to change my password. It is not a system issue. There is no good reason we developed this separate system in the first place; the only reasons are NIH [not invested here] thinking and empire building.

There seems to be no concern for Bar members or for the efficient presentation of documents. Has anyone noticed that many email systems simply reject large files? So, you “serve” your document production at 5 p.m., and go home. In the morning, you return to see a cryptic message that your email was
rejected. I just e-filed a motion to set for trial. No problem, but the court requires envelopes for its order, because it cannot e-file and serve the parties. Result: a separate envelope containing envelopes, with a copy of the motion to help the JA match the two. That should be fun, but tell me again — what did we gain for all this trouble?

The February 15 News advises that e-service is expected to be up and running “later” this year. This was always an obvious issue. Why then have we been forced through this very costly exercise to set up e-service on our own, if it will soon be obsolete?

The rule is far too complex and detailed, and yet misses the most basic user concerns. We had to spend “seminar” time to learn this new system, followed by many hours of office implementation time.

Honestly, I worry that nobody out there knows how to run a business. This is like spending a year building a set of wheels, with a promise to put the car on later.

Howard T. Sutter
Jacksonville

Facebook Friends
The Florida Supreme Court may have occasion to determine who your friends are.

On January 16, the Fourth District Court of Appeal certified as a question of great public importance whether a judge presiding over a criminal case can be Facebook friends with the prosecuting attorney on that case.  The certification is a result of a September 5, 2012, per curiam opinion in which the Fourth District Court of Appeal reversed a Broward County trial court’s denial of a motion for disqualification and held that the judge in such a case should be disqualified.  See Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

In short, the appellate court ruled that the Facebook relationship “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. . . .” 

Though denying a rehearing, the Fourth DCA certified the issue to the Supreme Court as one of great public importance. A notice of discretionary jurisdiction was filed on the docket with the note that review was sent to the Supreme Court on January 29. Whether the Supreme Court chooses to tackle this issue or leave it at the DCA level remains to be seen. Further, whether the decision will apply equally to defense attorneys as prosecutors and in the civil law fora is also unclear. However, as the opinion seems to read and as the law reasonably stands today, it appears that lawyers and judges generally are not allowed to be friends — at least within the greater Broward and West Palm Beach areas. 

  Now, of course, we all know this is a ridiculous expectation. Judges are lawyers; they are in fact friends with lawyers. They play golf with them on the weekends. They send their kids to the same schools. They attend the same social gatherings, bar meetings, and charity events. What the court seems to be really saying is that sitting judges just shouldn’t share the identities of their friends out in the open with Mark Zuckerberg.

  The funny thing is that the result of this opinion is less transparency. Without Facebook friendship publication, I will never know if my presiding judge shares a Corona with opposing counsel over a fishing rod on Sunday mornings. Now no longer armed with Facebook, I will not even know whether disqualification is something I should be requesting in the first place.

What this opinion also fails to take into account is the fact that most people who are “Friends” on Facebook are not actually friends.  No offense to the 1,756 “friends” I currently have on Facebook, but some of you are just people I know.  I like you, sure.  But you are not my friend. I do not get invited to your birthday parties. I do not call you to chat. 

Well, judges are people,  just like the rest of us. They know a lot of other people. In fact, they know most attorneys appearing before them. This does not mean that they are friends, in the traditional sense of the word. This does not mean that they will be unable to act impartially with regard to these “Friends.”

  As the court made clear, the question is not whether such a “Friend” could influence the judge; the question is whether identification as a “Friend” would lead a reasonable person to believe there could be some influence as a result of that relationship. I submit that any reasonably prudent person recognizes that a simple Facebook friendship, without more, is indicative of nothing other than at some point in time, two people were introduced to one another.  
 
Tamara Savin Malvin
Ft. Lauderdale

(Editor’s Note: The Supreme Court on February 14 voted against hearing the appeal of the removal.)

Merit Retention
The retention paranoia subsided with the return of the three justices and district court judges.

Chicken Little kept telling everyone the justice sky was falling and thus the Bar had to “educate” the public. The Bar leadership might now attempt to claim some responsibility for retention although no justice or district court judge has ever failed to keep his or her office, even without the Bar’s propaganda website.

Now some citizens might wonder if the Bar leadership has any present strategy to begin some type of “education” program to inform the citizens of Florida of the advantages of re-electing sitting circuit judges and county judges.

If not, could it be the Bar presidents and the leadership feel these lowly judges are not worth the effort?

Howard LaPorte
DeFuniak Springs

Med Mal
This is a response to Robert William Patton’s defense-oriented letter on med mal experts. I have done complex medical malpractice cases for plaintiffs for the past 40 years and never filed a “frivolous med mal case.”

The sole cause of medical malpractice is bad doctors and health care providers. Nothing has ever been done to attack and remedy that root cause. Over 100,000 patients a year are killed by medical malpractice. It is so bad now that every patient should have a “patient advocate” with him/her when entering a hospital. The “Public Citizen Health Letter” has rated Florida one of the 10 worst states for pursuing disciplinary actions against physicians four times since 2001. The Florida Agency for Health Care Administration is a joke. The only thing that keeps healthcare providers accountable is med mal suits.

The defense bar and other conservative elements have put up every obstacle possible to prevent plaintiffs from filing these suits. The biggest obstacle is the presuit requirements, which are designed for doctors to investigate the case and, hopefully, settle them before suit is filed. After filing hundreds of medical malpractice cases, I have never had a plaintiff make a settlement offer during the presuit stage, before the complaint is filed. The defense always comes up with some “expert” to file an affidavit to refute the plaintiffs claims in pre-suit.

Talking about “hired guns,” that is where you need to begin your study. During the last 40 years, I have settled or carried to jury verdict each of the cases I have filed, and I have never lost one, in full. I have lost two jury trials, but only after settling with a co-defendant in each case. How is it that the defense was always able to find a “medical expert” to refute the claims during the pre-suit stage, but either settled or lost at jury trial on all my cases but two? Pre-suit requirements are a joke.

The most recent hurdle is this new one of “qualifying expert witnesses.” As this has played out, it is a joke, too. The state collects the fee but does no investigation whatsoever. It is simply another hurdle for plaintiffs in med mal cases and a source of revenue for the state.

Medical doctors who make six- to seven-figure incomes each and every year they practice are only required to carry $250,000 worth of med mal insurance coverage. After the court costs, attorneys’ fees, and statutory lien payments are taken out of the settlement/jury verdict, there is not much left for the seriously injured plaintiff to pay for future medical costs. What happens then? Well, what happens is that those plaintiffs go on Medicaid when their funds run out, and the taxpayers pay for their future medical bills. The taxpayers did not commit medical malpractice; some doctor did.

Want to really revamp and change this entire system? Then beef up and properly fund the Florida Agency for Health Care Administration and start getting rid of bad doctors and other healthcare professionals. Healthcare in the United States is poor, at best. And it is unnecessarily expensive because of unbridled capitalism, which does not work in healthcare, just like it does not work in delivery of electric power. The profit motive, as practiced by our healthcare insurance industry, should be done away with, in favor of a single-payor system.

Thomas C. Staples
Pensacola

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CHEST, the peer-reviewed official journal of the American College of Chest Physicians, recently published an article under its Medical Ethics category titled “Five Myths of Medical Malpractice.”

The piece explains to its physician audience that there are five myths of medical malpractice that have wide currency in medical circles: Malpractice crises are caused by spikes in medical malpractice litigation (i.e., sudden rises in payouts and claim frequency); the tort system delivers “jackpot justice;” physicians are one malpractice verdict away from bankruptcy; physicians move to states that adopt damage caps; and tort reform will lower healthcare spending dramatically.

This is a courageous piece of peer-reviewed literature, as it dispels myths that many inside the medical community, and many in the general public, have clung to for years. But the facts prove otherwise, and it is time we all consider the facts.

Payouts have fallen dramatically since 1992 in states with and without damage caps; there have been no litigation spikes; patients who are true victims of malpractice recover money far more often than patients treated nonnegligently; the overwhelming number of negligently injured patients never initiate claims; most severely injured patients are undercompensated; as many as 85 percent of initiated claims are closed without payment; only 2 percent of claims are actually tried; 75 percent of tried claims result in favorable verdicts for the healthcare provider; out-of-pocket payments by physicians are so rare they are virtually nonexistent; at best, damage caps have been responsible for marginal (less than 3.5 percent) increases in high-risk specialties practicing in rural counties, no increase in urban centers, and the results of data analyses suggesting rural increases are mixed and conflicting; the data fails to support any meaningful drop in healthcare spending (0.4 percent to 1.6 percent), even in the face of significant reductions (30 percent) in malpractice premiums; and some data suggested healthcare spending increased in states like Texas after damage caps and other malpractice tort reforms were adopted.

Most importantly, the authors address the issue of patient safety. Isn’t that what it is all about? The authors rightly conclude that “damage caps do little to improve the malpractice system.” Although damage caps can “dramatically reduce claims frequency, payouts per claim, and insurance premiums,” the data prove that tort reform does NOT do any of the following: make healthcare safer; reduce healthcare spending; compensate those who are negligently injured; or make the liability system work better. The article explains, “The best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes. Ideally, the liability system would encourage providers to adopt patient-protecting innovations.”

But, as the authors aptly state, the tort system is hamstrung, due to tort reform, in its ability to improve things because damage caps, and other reforms that protect negligent doctors and hospitals, “insulate providers from many of the costs of medical errors.”

If we want a safer healthcare system, and a safer world, we need to make the tort system more efficient, with sharper teeth, not less. Damage caps fail to make our system safer. To the contrary, the more our judicial system tolerates negligent care, the less our healthcare system demands safety and vigilance. Meanwhile, where we have tort reform, we gain next to nothing.

Stuart N. Ratzan
Miami

[Revised: 10-16-2014]