Florida Personal Injury Lawyer Blog

How many times have we heard or uttered those words? When we take the Bar Association oath of office, we promise to “uphold the Constitution”. But what is in the Constitution? Have you ever actually read it? (And I’m not talking about the Cliff Notes version!)

This past several years, I’ve had the pleasure and honor of meeting two Supreme Court Justices (Justice Alito and Justice Thomas) and having dinner with another (Justice Scalia). All are extremely intelligent men whose main job it is to interpret the Constitution and its Amendments (there are 27). Here are some (I hope) fascinating facts about the Constitution and the men and women who have and still do interpret it for us: (I hope these peak your curiosity enough to make you want to give it a read!)

1. The U.S. Constitution has 4,440 words. It is the oldest and shortest written constitution of any government in the world.

2. Thomas Jefferson, the author of the Declaration of Independence, never signed the Constitution. He was serving as U.S. Minister to France (now called Ambassador) at the time of the convention.

3. At first, the Constitution wasn’t even called the “Constitution” – it was called “The Articles of Confederation”.

4. When the Constitution was signed in 1787 in Philadelphia, the U.S. population was 4 million. Now we are approaching 300 million. Philadelphia was the nation’s largest city with 40,000 inhabitants.

5. At least seven Constitutional Amendments were passed in order to reverse Supreme Court decisions. Some of the most notable ones: the Thirteenth Amendment (1865), barring slavery, and the Fifteenth Amendment (1868), protecting the citizenship of African Americans, effectively overturned the Dred Scott v. Sandford decision of 1857. The Sixteenth Amendment (1913) gave Congress the power to levy an income tax, which had been previously outlawed by the Supreme Court in Pollock v. Farmer’s Loan & Trust (1895). And the Twenty-Sixth Amendment (1971) overturned Oregon v. Mitchell which, among other things, held that Congress could not regulate the voting age in state elections. The Amendment set the voting age at 18 years.

Continue reading "That’s Unconstitutional!" »

Posted by Richard D. Schuler | Permalink | Email This Post

Posted In: Palm Beach County Bar Newsletter

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For those of our members who don’t read the Daily Business Review, but who practice law in almost any specialty, you need to familiarize yourselves with House Bill 1121 and Senate Bill 2108 pending in the Florida Legislature. The question is: will this legislation make our Court System and Clerk more efficient with better use of our limited economic resources or is it a “wolf in sheep’s clothing” which, under the pretense of economy and helping to relieve the Court’s funding crisis, will provide an avenue for the State to funnel more local money into its coffers?

The Courts’ Position

1) This legislation is supported by the Chief Judges of all Circuits and by all Justices of the Florida Supreme Court. It is sponsored by two “political heavyweights” - former Senate President Pruitt and Representative Bogdanoff.

2) It is in keeping with Chief Justice Quince’s “Seven Principles for Stabilizing Court Funding” – namely principle 2: User fees should be dedicated to the Court System and not other areas of government, and principle 7: Court filing fees should go into Court trust funds.

3) Clerk’s budgets have grown 33% to $539 million in the last four years compared with 13% to $433 million for the Courts.

4) The clerk’s budgets are not approved by the legislature and need more oversight.

5) Some Clerk’s duties that are really “court-related” services, (some of which were previously handled by the Courts years ago) such as case maintenance, records management, the assignment, reopening and re-assignment of cases; processing jurors, collection and distribution of fines, fees, service charges and court costs should be shifted to the Courts to help streamline the process and save money.

Continue reading "Clerks v. Courts (or Really the State of Florida?)" »

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Posted In: Palm Beach County Bar Newsletter

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On March 20, 1779 in Boston, Captain William Jones, United States Marine Corps, advertised for “a few good men” to enlist in the Corps for naval duty. This term has survived for 230 years. It is synonymous with public service in the Marine Corps.

Today, our new State Attorney, Michael McAuliffe, needs our help. In the past 18 months, legislators have cut his office budget by nearly 13%. His office is “running on fumes” with not enough prosecutors to staff courtrooms and prosecute cases. To combat this, he has announced a bold new initiative, beginning February 1, 2009, to take applications from attorneys in private practice who are willing to work without state pay to prosecute misdemeanors, including crimes such as retail theft (shoplifting), simple marijuana possession and DUI.

Mr. McAuliffe envisions that applicants will be younger attorneys in law firms who want trial experience as volunteers for these positions. However, the program is open to all attorneys qualified and willing to serve the public. He is looking for 12 to start with. You (the volunteer) will be trained by his office. The commitment will be 2 days per week for a minimum of 3 months and it is anticipated that the first group will start on March 1, 2009.

In these difficult times, there can be no greater call to civilian service than to serve in the interest of public safety and well-being. Besides, I have heard prosecutors (past and present) tell me informally that it is the best legal job they’ve ever had except for 2 days a month (payday)!

I would urge you, as a member of our Bar Association, to consider applying for this. Think of it this way - you’ll be learning a new skill for no monetary investment (that has great practical application to litigation of all sorts), you’ll be having fun doing it, you’ll be serving the highest interests of the public good and safety, and you’ll be contributing to the success of a first-of-a-kind program never before tried in our State. This is a program that, like Court ordered civil mediation started in Palm Beach County 25 years ago and now universally used statewide and nationally, will be recognized as ground-breaking and will itself spread if successful. Oh yes, and it will be a nice addition to your resume.

The term “gung ho” is often associated with the United States Marines but is actually Chinese (my Mandarin speaking son Eric tells me) and literally means “working together”. Let’s be “gung ho” for this unique and imaginative program and help our new State Attorney to make it a success and something to which we can point with pride. It certainly is in keeping with the purpose of our Palm Beach County Bar Association mission to serve the public as well as our profession.

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A famous American once said: “I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country…corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of people until all wealth is aggregated in a few hands and the Republic is destroyed.” - Abraham Lincoln, 1864

Years ago, I became familiar with an organization called POCLAD. POCLAD is an acronym for “Program on Corporations, Law & Democracy”. This is a small organization that invites people to engage in this thought: giant corporations actually govern this country. In the Constitution of the United States, they (corporations) are delegated no authority to make our laws and define our culture. In fact, they are not recognized at all. Corporations have no constitutions, no bills of rights. So when corporations govern, democracy flies out the door.

The quote from Lincoln seems as relevant today as it was 145 years ago – maybe more relevant.

Is there any question that Mega-corporations dominate global politics, our lives, our government, our work, our healthcare and our food supply? Media conglomerates set the limits of public discussion, commercialize our national consciousness, and manipulate mainstream public opinion to their own ends. Those of us who pick juries see the results of this manipulation every time we go to the Courthouse for voir dire. The disrespect for the Court and the judicial process didn’t spring out of thin air. A steady diet of this disrespect can be heard on major corporate “news” outlets almost every night. (Although I must admit, it is probably reinforced by some types of attorney advertising).

There is also the issue of ecology – the trendy phrase now is “global warming”. POCLAD makes the argument that the earth’s complex ecology is endangered by corporations since people are exhorted to consume more in the name of “growth” so big companies can get bigger. Ergo, the housing glut fostered by large real estate development corporations raping the land.

Banks that wanted to “expand” without proper limits on loans and investments, and investment corporations that redefined the term “speculation” with a secondary market for mortgage backed securities and “unregulated” insuring of securities’ transactions in London and unrestricted mining and drilling all are contributing to a systemic alteration of the individuals’ role (loss of power) versus the corporate role in the protection of our environment.

Continue reading "Provocative Thought: Should Corporations Have the Same Rights as Citizens?" »

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Posted In: Palm Beach County Bar Newsletter

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I read an article recently where some large law firms in Chicago and Washington, D.C., were laying off (firing) lawyers and support staff. One firm reportedly “asked” ten equity and non-equity partners to leave. The quote from the managing partner was: “we have to watch the bottom line”.

These are scary economic times as we all know. There is always that tension between law as a profession and the “business” side of private practice.

For many of us, this is the life we have chosen. It is not a job but a “calling”. As such, our PBCBA helps us to nurture our professionalism – but also helps with the business side by having CLE seminars on how to manage our practices professionally and how to improve our business efficiency by making mentors available and having training and information available on systems (computers and otherwise) that may aid us to make our practices more efficient on the “business” side.

Ultimately, it “pays” to be optimistic with our clients, our peers, our opponents and even our competitors. They like it, it makes us feel good, it’s more “professional” and it’s good for business. Although pundit and columnist George Will has said: “the nice part about being a pessimist is that you are constantly being either proven right or pleasantly surprised”, I prefer the middle ground position of humorist Gil Stern: “Both optimists and pessimists contribute to our society. The optimist invents the airplane and the pessimist the parachute.”

When it comes to trial lawyers (although I think this is applicable to all of our specialties), Ed Ricci made a great point in a recent article for the PBCJA on “Why Juries Hate Trial Lawyers”. Ed noted a number of scandals where nationally prominent lawyers had been arrested and gone to jail noting that their “Achilles heel” was “the money”. He then referred to the most famous trial lawyers – some real – some fictional – Clarence Darrow, Perry Mason, Atticus Finch and others and asked a rhetorical question about whether these iconic folks were revered for “the money” or because of their skill and devotion to justice. It’s obvious that they were champions of justice.

Optimistically, I would like to think the stories of the above men are not lessons lost in the current business climate.

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Posted In: Palm Beach County Bar Newsletter

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Our Country’s founders split our government into three parts to protect us from abuses of power. Yet our legislature (2nd branch) appropriates money to support our Courts (3rd branch). The Executive branch appoints new judges and fills vacancies. Yet the Courts are supposed to be apolitical. The founders attempted to protect our courts from political influence so judges could protect our freedom. Courts consider the facts and the law, not politics or religion. As Alexander Hamilton said: “Laws are a dead letter without Courts to expound and define their true meaning and operations.”

Presently, our Court system is under pressure as never before due to State budgetary cuts imposed by the Legislature. Is it too soon to call this a crisis? You need to be the judge of that. However, here are some facts that may be of interest:

1. The State of Florida’s budget for fiscal year 08-09 is $66,199,586,152. That’s down from $71 billion in 07-08.

2. The State Court Systems’ Budget for 08-09 is $438,269,619. That’s 0.7% of the entire State budget.

3. The annual Trial Court Budget for Palm Beach County’s 15th Judicial Circuit for 08-09 is $21,689,144.

4. There are 54 Judges (35 Circuit/19 County) for a land area (Palm Beach County) of 2,500 square miles and a population of 1,300,000 – including operations at 5 Courthouses- West Palm Beach Downtown (Main Courthouse); West Palm Beach Gun Club (next to Jail); North County (PGA Boulevard); West County (Belle Glade) and South County (Delray).

5. Cuts already made in the State’s appropriation for the Courts total $44 million (10%) over the last two years and 280 jobs.

6. In addition to the above reductions, the Governor has ordered a 4% holdback of the cash release for 08-09. The Chief Justice (of Florida’s Supreme Court) has ordered a similar holdback for the Judicial Branch but has reached an agreement with the Legislature to look for other alternatives to the Courts’ salary budget to avoid significant additional immediate staff reductions. There are rumors of a Special Session to further cut the 08-09 Fiscal Year Budget.

Continue reading "Help Our Courts Maintain Our Freedom (It's a Small Price to Pay)" »

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Posted In: Palm Beach County Bar Newsletter

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Like so many others, Bob Montgomery gave me my first job as a trial lawyer. (In characteristic fashion, he offered me more to start than I asked for!) The list of the attorneys he hired over time, from Jacksonville to Fort Lauderdale, West Palm Beach and St. Petersburg reads like a “Who’s Who” of the trial lawyer elite. From most of the partners at Lytal and Reiter to most of the partners at Searcy, Denney – Roy Watson, Justus Reid, Edna Caruso, Lois Frankel, Wally McCall, George Mastics, Steve Billing, Mike Bragg, Jose Rodriguez, Mike Burman, Judge Moses Baker, Bettye King…I don’t mean to leave anybody out but I could fill this whole space with just the names of the superb lawyers he trained.

Bob believed in training – both in the art of the trial practice and the business side. He was a superb cross-examiner whose aggressive style won many an “unwinnable” case. He also didn’t hesitate to throw his young lawyers into “the deep end of the pool”. I remember handling cases with seven figure potential 30 years ago. With Bob you had to be the best prepared, have the best experts and make the best arguments. He gave us all the confidence to go beyond being a “litigator” (a term he never used and associated with “silk stocking” firms). To be a trial lawyer, he knew his lawyers had to cut through all the legalisms and get to the common sense essence of the case. He used to call it “the heart of the coconut”.

We spent money on preparing our cases (“you have to crack a few eggs to make an omelet”). We spent money on marketing to get cases (“you have to catch a rabbit before you can make rabbit stew”).

For as many large verdicts and settlements that Bob got, he always believed in giving back to the community. Between the Palm Beach Opera, Kravis Center, Home Safe, Armory Arts Center, Sickle Cell Foundation, Anti-Defamation League and many others, I’m told that he and his wife, Mary, will have given $100,000,000.00 to various arts and charitable causes.

Bob’s personality could only be described as a “force of nature”. He did things with speed and intensity. I remember trying a wrongful death case in Martin County where he got so worked up, he accidentally ripped open the zipper on the front of his pants – had to ask the Judge for a recess to sew it up so he could continue.

On another occasion, his secretary, Mrs. Tucker, who never made a mistake, put down 3 “a.m.” for a hearing time instead of 3 “p.m.” When opposing counsel poked fun by sending a letter saying “I’ve heard about wearing down out-of-town counsel, but isn’t this a bit ridiculous”, Bob shot back a letter: “that was no mistake buddy, we knew you’d be boozing it up in these environs about that time so we knew you’d be available.”

It is hard to appreciate now, but Bob was way ahead of his time in hiring minority attorneys, women, attorneys of color and others. He took a chance on this short, skinny (then) kid from New York with no trial skills.

A senior partner attorney in another firm once said to me many years ago: “How does Bob Montgomery find all these talented trial lawyers to come into his firm – what does he do to find them, what is his system?” After all these years, the answer is clear – he didn’t find them – they found him. Those that wanted to be the best – wanted to learn from the best. Bob, you were the best. For all of us that you taught to be successful, thank you, and we’ll miss you. You were exciting to be around. A real force of nature.

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Posted In: Palm Beach County Bar Newsletter

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Sometime in 2009, Clerk and Comptroller, Sharon Bock, is going to be installing new computer programs to handle the operations and to reorganize the Clerk’s office and website. Her office has graciously consented to allow our Bar Association to have input into this process by sending out a questionnaire to our members asking for your ideas as to what you would like to see on this website and what information and functions you would like to use and obtain through the Clerk and Comptroller’s office website.

This survey will be done electronically, i.e., sent to your email. It represents a golden opportunity for us, as lawyers, to make our voices heard and to have input into this most important source of local governmental information. Whether it’s being able to access pleadings in a Civil or Criminal matter or E-filing of pleadings, or other functions, please let us know what you would like to access to assist you in your specific practice specialty. The suggestions that you make will be prioritized and the results of the survey will be reported to the Clerk’s office and to our Association.

The timeline for responding to this survey will be short. Since the bidding process and negotiation for the new software will be moving forward quickly, we ask that you respond to this survey electronically within fourteen (14) days of receipt.

Of course, there is no guarantee that all of our suggestions will be able to be incorporated immediately upon the launch of this new software sometime in 2009 (which is the target). Bear in mind that any E-filing and access to scanned pleadings is controlled by the Florida Supreme Court through the Florida Courts Technology Commission which has to approve of any proposals. However, I can think of no greater opportunity for we, as lawyers, to have a significant impact on a major source of governmental information that relates to all of our practices.

I want to thank, in advance, our Clerk and Comptroller, Sharon Bock, and her staff, especially Un Cha Kim, Jim Douglas and Nicole Blanton, and those heading up our Bar Technology Committee – Casey Jones, Chuck Hernicz, Brian Poulton from the State Attorney’s Office, Mark Osherow from the South County Bar, Bard Rockenbach and, of course, Patience Burns for participating in this important project.

We look forward, with anticipation, to your responses!

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Posted In: Palm Beach County Bar Newsletter

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When I first met Judge Winikoff he was running for Judge. Frankly, I didn’t think much of his chances – a securities lawyer from Boca with no ‘trial’ experience. So I told him a joke:

“Judge Winikoff, that has a nice ring to it, but do you know, truly, what the two most important requirements are to be a Judge?” “No” he said (with that mischievous smile that would become so familiar) “but I think you’re going to tell me”.

“Well,” I said, “the first requirement to be a Judge is to have a full head of gray hair – to look distinguished. The second requirement is to have hemorrhoids – to look concerned.”

He laughed as only Judge Winikoff could and then said, “do you know what the most important requirement will be to be a successful lawyer in my Court?” (The obligatory “no”) – “don’t tell the Court such stale jokes!” We hit it off right away.

This past month the bench and bar has lost a giant of a man – literally and figuratively. Judge Winikoff was one of the most down-to-earth, yet intelligent and practical Judges. He was what a Judge should be: fair, impartial, humorous, diligent, quick to recognize the issues, and quick to brush aside spurious arguments that wasted the Court’s time. He knew how to get to the heart of a matter and treated parties, attorneys, and jurors with the utmost respect.

I miss Judge Winikoff. I miss his sense of humor and his other attributes, but most of all, I miss that feeling of knowing, in his Courtroom, professionalism prevailed and my clients would always get a fair shake. Yes, and even in the most serious cases, we would all have some laughs along the way!

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Posted In: Palm Beach County Bar Newsletter

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On March 13th through 15th, 2008, I was privileged to attend the ABA Bar Leadership Institute (BLI) in Chicago, Illinois. As part of that Institute, lectures were presented on various topics. One of the most interesting lectures was presented by Fred Ury, Past President of the Connecticut Bar Association and Thomas Lyons, Past President of the Rhode Island Bar Association. These two gentlemen are still practicing attorneys but they also teach and have focused and specialized on approaching trends in the legal practice. The lecture was so fascinating that I thought I would share some of the information they provided with you.

Demographics

1.Approximately 55% of lawyers nationally are baby-boomers, the eldest of whom are reaching retirement age.

2.Fewer lawyers are coming into the profession than are approaching retirement age.

3.Bar Associations may have to plan for reduced memberships unless these demographics reverse themselves.

Legal Education and Law School Debt

1.After several years of decline, law school enrollments increased slightly last year.

2.Female enrollments are declining.

3.Minority enrollments appear to be declining.

4.Law school tuitions are up 267% since 1990.

5.Starting salaries are up 60% since 1990.

6.Graduates of private law schools have debts of about $80,000.00 or more not including undergraduate debt.

Career Mobility

1.One in four workers have been on the same job for one year.

2.One in two less than five years.

3.Today’s graduates will hold 10 to 14 jobs by their 38th birthday.

4.The Palm Beach County Bar Association experiences 20 to 30 address changes per month.

Technology and the Economics of the Practice

For a real eye-opener, one should take a look at a couple of the legal sites that I will list below. In fact, there are legal sites that promote the preparation of legal papers such as leases, trusts, wills, etc., across state lines over the Internet and there are even legal sites such as one listed below, that large industrial clients post assignments on to be bid upon by large law firms within a specified time period. The client, e.g. Exxon Mobil, will then select the bid that it deems most appropriate for its legal task and contract with the particular law firm or law firms selected. A selection of these sites for your review are as follows:

1. www.legaladviceline.com

2. www.legalzoom.com

3. www.elawforum.com

4. www.completecase.com

The above are just a sampling. There are many more than these.
Along with the above information, you should be aware of these additional facts bearing on technology’s impact on our practices:

1.More than 50% of U.S. 21 year olds have created content on the web.

2.70% of 4 year olds have used a computer.

3.It was December of 1992 when the first commercial text message was sent over the Internet.

4.Today alone, commercial text messages exceed the population of the planet.

5.Today information is doubling every two years on the Internet.

6.It is predicted by the year 2010, information on the Internet could double every 72 hours!

These are some of the trends made apparent at the BLI. If you’re going to further your practice, it is fairly clear that all of us need to be aware of these and other fast-paced developments for, as the old saying goes “if you’re not on the train, you might be on the tracks.”

Throughout the rest of this year, I will try my best to alert our members to issues like these through this President’s Message column and at our meetings.

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Posted In: Palm Beach County Bar Newsletter

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