A publication of the Collier County Bar Association
MEDIATION & ARBITRATION
September 2020 Vol. 192 Adverse Witness, July-August 2020
Adverse Witness As youall know, our Bar Associationhad tocancel or reschedule many of our fantastic events and programs this year due to the COVID-19 pandemic. One of those events was our annual Law Week luncheon and presentation. The Law Week theme this year was “Your Vote, Your Voice, Our Democracy - the 19th Amendment at 100”, which commemorated “the centennial of the transformative constitutional amendment that guaranteed the right of citizens to vote would not be denied or abridged by the United States or any state on account of sex. American women fought for, and won, the vote through their voice and action.” Lisa Terwilliger, Chris Donovan and I had already lined up the presenters for this year’s Law Week luncheon prior to the decision to postpone all in-person Bar Association events. In order to meet the requirement of having at least one costumed historical reenactor appear at a Bar event each year (known as the “Laird Lile Rule”), we were scheduled to have an actor from the American Historical Theatre in Philadelphia appear in character as Susan B. Anthony. And Chris Donovan had agreed to appear in costume in a supporting role as Alice Paul, who was another important figure in the women’s suffrage movement (you can see a photo from Chris’ dress rehearsal below). It would have been a memorable performance and great Law Week program. But it was not meant to be. While it was unfortunate that the Law Week program was canceled this year, preparing for it gave me the opportunity to think about the theme and how fortunate our Bar Association is to have a history of strong female leadership, which continues today. The precedent was set in Collier County by Lynne Hixon-Holley who, among her many accomplishments, was the first female judge in the county and circuit courts, the first female public defender, the first female school board attorney, and the first female CCBA president (serving as our third president from 1952-53). I had the pleasure of interviewing Judge Hixon-Holley a few years ago as part of an Inns of Court project. She was as sharp as ever, and regaled us with tales of being one of only three women at the University of Florida Law School. Judge Hixon-Holley passed away on April 30 of this year (coincidently, the day before Law Day, which kicks off Law Week), but her accomplishments and leadership set the example for female leaders in Collier County and within our Bar Association. While Judge Hixon-Holley set the bar for women leaders in our area, many of our excellent female attorneys followed in her footsteps and have continued to raise that bar. To date, fifteen women have served as President of our Bar Association, which I would be willing to bet is a very high number when compared to other Bar Associations throughout the state. In fact, we’ve hadmore female thanmale presidents since 2002. In addition, to JudgeHixon- Holley, Brenda Garretson (1984-85), Cathy Reiman (1991-92), Shannon Anderson (1993-94), July-August 2020 PRESIDENTS MESSAGE Letter from the Editor Did you know that the first version of the iPad debuted in 2010? In fact, in 2010, many things were very different. The national crisis of the moment was the BP oil spill. Breaking news in pop culture included Simon Cowell leaving American Idol after eight years with the show, and Kate Middleton becoming engaged to Prince William. The notion of conducting court hearings and trials virtually would have sounded far-fetched. (Interestingly, Zoom was founded one year later in 2011, but would not become a house-hold name until 2020.). Our judiciary has changed quite a bit, as well. In 2010, Judges McF e andMcGowan were criminal defense attorneys, often opposing Judge Brown, a budding young prosecutor. Ju ge Cupp and Judge Nicola were solo practitioners, Judge Foster was practicing civil trial law, and Judge Adams became a member of the Florida Bar. A dec de, seven new judges and seven generations of the iPad later, one thing has remained very much the same - the Adverse Witness . This little publication of ours has had the s me look since Pet r Van Dien was president of the CCBA i 2010! As is year’s secretary and thus the curr nt editor, I will b working with Lisa to implement a fresh new look for the magazine tha has become a staple on la yers’ desks (and, more rec ntly, computer screens) around Collier County. Do ’t orry, you will still see all of the columns that you know and lov , including Views from the Bench, ph togr phs from our events (whether they are screen shots of virtual meeti gs or pictures from saf ly social-distanced gatherin s) and, of course, your President’s Message. And most importantly, we till want to f ature content from our members, s please k p submitting articles and phot gr phs for publication. Enjoy your last 2010s-era Adverse Witness , and be on the lookout for our new and (hopefully) improved look in the September issue. Respectfully, Rachel Kerlek Editor of the Adverse Witness.
September 2020 Vol. 192 published in the Adverse Witness, nor are the articles published in the Adverse Witness intended to express the views of the Collier County Bar Association. If you have questions or concerns about information contained in articles published in the Adverse Witness, please contact the author of the article directly. Real Estate - Erin Miller-Meyers Trial Law - Christopher Donovan Trusts & Estates - Kristin Phillips Young Lawyers - Ashley Cooper Collier County Bar Association 3315 E. Tamiami Trail, Suite 505 Naples, Florida 34112 (239) 252-8711 (239) 775-5858 Fax LisaT@colliercountybar.org www.colliercountybar.org Hours: 8:30 - 4:30 p.m. M-Thu 8:30 - 4:00 Fridays The adverse witness is pleased to feature articles submitted by Collier County Bar Association members, affiliates and the general public that may be of interest to the Collier County Bar Association’s membership. The Collier County Bar Association does not verify the accuracy of the information contained in the articles Adverse Witness Editorial Board Publication Deadline: 10th day of month preceding publication Officers President Travis Hayes President Elect Andrew Reiss Treasurer Edward Larsen Secretary Rachel Kerlek Immediate Past President Richard Montecalvo Executive Director Lisa A. Terwilliger Directors Hilda Cenecharles Christopher Donovan Donna Marshall Patrick Neale Jamie Schwinghamer Rebecca Vacciarello Charles Whittington Section Chairs Family Law - Corey Huffman Publication Deadline: 10 th day of month preceding publication Officers P esident Travis Hayes President Elect Andrew Reiss Treasurer Edward Larsen / AW Editor el Kerlek Executive Director Lisa A. Terwilliger Immediate Past President Richard Montecalvo Directors ilda Cenecharles hristopher D novan a Marshall trick Neale Jamie Schwinghamer Rebecca Vacciarello Charles Whittington Section Chairs: Section Chairs Family Law – H lly Rice Real Estate – Erin Miller-Meyers Trial Law – Christopher Donovan Trusts & Estates – Kristin Phillips Young Lawyers – Ashley Cooper Collier County Bar Association 3315 E. Tamiami Trail, Suite 505 Naples, Florida 34112 (239) 252-8711 (239) 775-5858 Fax LisaT@colliercountybar.org www.colliercountybar.org Hours: 8:30- 4:30 p.m. M-Thu 8:30-4:00 Fridays A rse Witness Editorial Board
Christine Greider (1996-97), Jill Burzynski (2002-03), Kelley Geraghty Price (2004-05), Jean Rawson (2005-06), Kathleen Passidomo (2007- 08), Janeice Martin (2008-09), Maggie McMorrow (2011-12), Jeanne Seewald (2012-13), Tamara Nicola (2013-14), Sonia Diaz (2014-15), and Kim Spiker (2018-19) have served as presidents of the Collier County Bar Association. CONTINUED ON PAGE 31
Cover photo by Gail Markham. If you have a picture (old or new) that you’d like to submit for consideration as cover art for the next issue of the Adverse Witness , please forward a JPG image to Lisa Terwilliger, LisaT@colliercountybar.org along with a brief description of the place depicted in your photo.
The Adverse Witness is pleased to feature r cles ubmitted by Collier County Bar Association members, affiliates and the general public th t may be of interest to Collier County Bar Association’s membership. The Collier County Bar Association does not verify the accuracy of the information contained in the articles published in the Adverse Witness , nor are the articles published in the Adverse Witness intended to express the views of the Collier County Bar Association. If you have questions or concerns about information contained in articles published in the Adverse Witness , please contact the author of the article directly.
Adverse Witness, July-August 2020
THE VIEWFROMMY DESK
Lisa Terwilliger AW
Does it feel like fall yet to you?
Sadly, it doesn’t to me. There is no slight decrease in temperature, no pumpkin spice anything, and most importantly no CCBA events as we’ve come to know them. Over the past 14 years September has been synonymous with spending time with our members. The September events have always been like an adult version of the “what I did over the summer” essays we all wrote in school. THIS YEAR WILL BE DIFFERENT! Not better, not worse, just different. It will be up to us to weather the storm and come out on the other side, stronger and more in tune as a community. Herman Melville said, “Real strength never impairs beauty or harmony, but it often bestows it, and in everything imposingly beautiful, strength has much to do with magic.” I have come to believe that the CCBA is a magical organization; professional and yet deeply personal. Strong bonds exist here. We care about each other. We are passionate about the law and our fellow Neapolitans. We are a community. A community that I know will withstand this test. No one really knows what the rest of this season will bring, but I’ll go back to my buddy Herman (I’m quoting him so much that we feel like old friends!), “I know not all that may be coming, but be it what it will, I’ll go to it laughing.” This is exactly the approach the CCBA Board and I took as we planned this upcoming season. It will not be what we are used to, but we are making the best of it. In person events will be temporarily replaced with Zoom meetings. While we’ll miss visiting before the luncheons, we’ll get the same CLE without the commute. It will also be cheaper, as we’ll be charging only $10 for each event, which will go to the Foundation – a win/win! We’ll also be able to bring in speakers that are normally out of our reach due to time and distance. Score! When we do get back together, just imagine how much we’ll have to discuss!
We are also using this time to get to know different aspects of our members. In this issue you’ll see pictures depicting life for our members now….Zoom screen shots, the new workday dress code, and what we are calling hidden talents and quarantine hobbies. I love this fun new view of our members. I hope you’ll help me make the picture pages of the Adverse Witness vibrant and special with your own submissions. This is a unique opportunity to bring a new community dimension to the AW. I’m looking forward to it. If you’re reading this, you’ve likely already renewed your membership (and are slightly bored), but if you haven’t I encourage you to do so now. This year is a litmus test for associations like the CCBA. Your continued participation and support is not only necessary, but also proof positive that we are an integral part of your professional lives. Together we are stronger. We can offer each other support, guidance, humor, and a nudge when it’s needed. But my words pale in comparison to those of the truly eloquent Herman Melville. We started with him, so it seems like a good idea to finish with him as well. “We cannot live only for ourselves. A thousand fibers connect us with our fellow men; and among those fibers, as sympathetic threads, our actions run as causes, and they come back to us as effects.” Our connection with you is the reason we exist. Thank you for leap of faith you are taking in joining us on this unparalleled journey
September 2020 Vol. 192
INNS OF COURT
Javier A. Pacheco AW
A Time for Innovation and Collaboration. We kick off the 2020-21 season of the Michael R.N. McDonnell Inn of Court in
available technology. We have planned ahead of our evidentiary hearings to make sure all evidence is properly agreed upon or identified for dispute prior to hearings. We have resolved cases in video mediations and worked together to get settlement documents executed. We have agreed to reasonable extensions and resolved discovery disputes as much as possible. We have helped each other. We have collaborated. And our clients, and our practices have benefited. Of course, this innovative way to practice law is not ideal, and we would all prefer arguing motions and questioning witnesses in person. We would all prefer to enjoy a nice dinner once per month with our friends and colleagues in the bench and bar. But in these uncertain times, our local legal community has innovated, collaborated, and risen to the challenge. That is why the Michael R.N. McDonnell Inn of Court board of directors is confident and excited that this year can be a great one for our Inn. So please join us for our first meeting of the year at 5:00 pm on September 15, 2020. We will announce our teams, swear in this year’s board of directors, swear in new members to the Florida Bar, and provide our members with more information about our upcoming programs and initiatives. We look forward to seeing you there! 2020-2021 Meeting Schedule Zoom Information to be published soon! September 15, 2020 October 13, 2020 November 10, 2020 January 12, 2021 February 09, 2021 March 09, 2021 April 13, 2021
historic, unprecedented times. Five-volume tomes could be written about everything that has occurred in the first half of 2020, and that is before we head into the meat of hurricane season and divisive local and national elections. The COVID-19 has affected our families, our businesses, our communities, and for some of us has presented serious health issues. Most of us have had our routines, if not our lives, changed, and probably not for the better. But there is an undeniable silver lining to the interruption to business as usual: our profession has innovated and adjusted to remote video and phone hearings, mediations, depositions, and client meetings. Zoom and other technologies have enabled us to move our cases forward safely and efficiently, saving us travel time and allowing some of us to work from home or outside our offices as needed. Most of us are becoming very comfortable with this technology, and are more w inclined to use it going forward as much for convenience as necessity. Because of this, the Michael R.N. McDonnell Inn of Court has decided to conduct its meetings and presentations via Zoom for at least the rest of 2020, with the hope of live meetings as soon as it is safe to do so. There is really no practical way at this time to hold in person dinners and performances while making our members feel a safe. Along with our teams and captains, we are committing to presenting interesting, useful, and entertaining remote video CLE programs using the full extent of technological advantages that this new format allows us. The alternative – not having Inn of Court this year – is unacceptable. It will not be easy or perfect. It will require collaboration, patience, planning, and preparation. But our profession and our judiciary has risen to the challenges presented by this year. We have collaborated in scheduling depositions and met our colleagues more than half way to work with
September 2020 Vol. 192
Rebecca Vaccariello AW
The Gene Doyle Memorial Foundation.
Spring 1997. Always living life to the fullest, Gene’s free spirit loved the pure joys of wild adventures on land and
sea with family and friends. How the Charity Began
Friends of Gene Doyle were adamant after Gene’s passing that a charity fishing tournament should be held in his memory and provided the initial donation of funds. The Gene Doyle Memorial Foundation was established, with goals to both remember Gene through his love of fishing and outdoor adventure, and to provide funding for adventure trips to local high school students, who usually have more time than money available for such pursuits. A loyal group of friends and family continue to serve on the Foundation board of directors and run the annual Fishing Tournament, keeping Gene’s spirit alive by sharing and supporting his love of life and nature. About the Foundation’s Adventure Scholarships The first Adventure Scholarship was awarded in 1997, with over 60 having been awarded to date. The Foundation awards three Adventure Scholarships each year, which allow local students to experience life-changing adventure programs, such as trips offered by the National Outdoor Leadership School (NOLS), Outward Bound or Alaska Mountaineering School. There is an online application for high school students to apply for a scholarship, and the Foundation selects three scholarship recipients each January from the many applications received. Unlike traditional scholarships, the adventure scholarships are designed to be as untraditional and unique as Gene. Scholarship winners have gone on trips such as dog sledding in Minnesota, mountaineering and backpacking in the mountains of Alaska, sailing trips including off the coast of Maine and a voyage from Boston to Bermuda, and rock climbing and skydiving in Northern Florida. A past scholarship recipient speaks at the awards dinner at the end of the annual fishing tournament weekend and the stories of how the adventure trips have transformed young lives are compelling, sometimes resulting in newfound career paths and always valuable for the time spent enjoying nature and new corners of the world. While the adventure trips are hopefully fun and enjoyable, they are also much more than that, providing unparalleled learning and growth opportunities for our local youth, with the stories upon their return establishing the far-reaching impacts.
The Gene Doyle Memorial Foundation is a local Naples charity that awards annual Adventure Scholarships to Collier County high school students, while honoring the
memory and adventurous spirit of Robert Eugene “Gene” Doyle III (1976 – 1996). The Memorial Foundation’s annual fundraiser, Gene Doyle Backcountry Catch and Release Fishing Tournament, is in its 23rd year. I first became aware of the Gene Doyle Fishing Tournament about five years ago and I immediately wanted to get involved as a volunteer, despite knowing nothing about fishing. Just learning that Robin Doyle, an attorney who I respected greatly as so many of us do, had suffered a tragedy, losing his son Gene in a car crash in 1996, made me want to help. I began by volunteering at the fishing tournament’s kick-off party and awards banquet, helping with registrations and logistics as needed, and more recently I agreed to co-chair the tournament with Mary Payne, a long-time core volunteer and a true moving force behind the tournament for many years. I have since observed firsthand the significance of this local charity to our community: the Foundation not only provides funding for transformative adventure trips for local high schoolers, but it provides an extraordinary example of how fiercely loyal and motivated family and friends can accomplish so much good while honoring the spirit of their loved one. About Gene Doyle Gene enjoyed all forms of outdoor adventures and was an avid fisherman, an honor student and three-sport star athlete at Naples High School, Class of 1995. Hewas Student Council President his senior year, successfully balancing academic and athletic pursuits, and all with a healthy dose of humor and his boundless energy. Gene earned a scholarship to the University of South Carolina, where he began pursuing a marine science degree in the Fall of 1995. Gene also earned a place in the Honors College, created a wrestling club, and was planning a semester in Belize for
September 2020 Vol. 192
Rebecca Vaccariello AW
About the Annual Fishing Tournament The Tournament’s family-friendly, laid-back atmosphere, combined with fun competition for all categories of angler awards, is a perfect tribute to Gene. The tournament is popular for its backcountry catch and release team and individual format, and anglers compete out of launch sites in Collier and Lee Counties. Each year, local fishing guides volunteer to take children fishing in the tournament who would not otherwise have the opportunity to get out on the water, some who have never been on a boat before, and some who have then grown up to volunteer for the tournament themselves. The Tournament is usually held over a weekend each April or May, although this year’s scheduled May tournament dates were cancelled due to the COVID-19 pandemic. The 23rd annual fishing tournament is now a virtual fishing tournament scheduled for October 2020, angler participation is free, and all details are available online at www.genedoyle.org. The virtual Tournament involves fishing on your own and reporting results by submitting photos online. Prizes will be awarded and include a free family team entry for the 2021 tournament (value $625). The 24th annual Gene Doyle Fishing Tournament is scheduled for April 16-18, 2021. Getting Involved Volunteering with the Foundation to help with the annual Tournament does not require any experience with fishing, and everything spanning fromtwo hour tasks, to longer term planning and website updating, to weekend-of-tournament event assistance, including volunteer fishing guides, are all options for jumping in on this fun community event. In addition, Tournament sponsorships are available, including to send children fishing, and Foundation donations in any amount are accepted online. Please email me at Rebecca@ RMVnaples.com or Robin Doyle at Robin.Doyle@comcast. net if you have any questions and want to join in the fun to support our local youth and Gene’s memory.
September 2020 Vol. 192
Florida Courts, like many courts throughout the country wrestle with the somewhat complex and arduous task of determining a proper allocation of Goodwill in a business. Determining the proper allocation of Goodwill is not only important in Family Law Courts but also in corporate / shareholder matters and in US Tax Courts. In recent decisions, in Muszynski vs. Muszynski and in Mann v. Mann give insights into the allocation of Goodwill in the family law setting. Based on these cases and the seminal referenced business valuation case, Thompson v. Thompson , we can now glean the following insights: 1. Under Thompson, Fair Market Value is the Standard of Value in Florida family law matters; 2. There is no directive from either a statute or appellate case ruling that proscribes the exact valuation methodologies a business appraiser / financial expert witness must utilize; and 3. A credibly supported allocation of Goodwill will likely be adopted by the Court as there is no moratorium on the determination of enterprise goodwill as both the recent Muszynski andMann decisions demonstrate. Goodwill is a catch-all term accounting term used in finance to recognize a company’s value above its tangible and identifiable intangible assets. Within the purview of Florida Family Law Courts, Enterprise Goodwill may be attributable to the marital estate (See Thompson) whereas Personal (aka Professional) Goodwill is not included in the marital estate. With these insights in mind, we are presenting three models for determining a credible allocation of Goodwill: 1. The Multi-Attribute Utility Model 2. Top Down Analysis 3. Bottom’s Up Analysis
is based on what the appraiser has observed based on their analysis, interview of the Company’s Management and a site visit. These Mum Factors can be viewed as subjective and open to interpretation. To successfully deliver a credible allocation, an experienced appraiser must devote proper professional time interviewing the Company’s Management and stakeholders to give specific reasons for the determined allocation. Top Down Analysis As the name suggests, the appraiser starts by determining the fair market value of the company. Then, the appraiser identifies and values the intangible assets associated with personal goodwill: family name, owners’ reputation, employment contracts, etc. Finally, the value of identified intangible assets associated with personal goodwill is deducted from the company’s top-level value and the residual value, Enterprise Goodwill, is considered divisible within the marital property. Bottom-Up Analysis This analysis is somewhat the reverse of the Top Down Analysis. This approach begins by appraising the company’s tangible assets. Next, the appraiser values the company’s enterprise intangible assets. Any residual value, relative to the Fair Market Value of the company as a whole, is determined to be Personal Goodwill. Identifiable intangible assets include: Software, Assembled Workforce, TradeNames andMarks, Patents, Non-Compete Agreements (to employees other than Earning Spouse), Customer Relationships, etc. Based on the qualities of the underlying intangible asset, we would use the appropriate valuation methodology. The MUM Factors Analysis has the benefit of simplicity based on a more subjective, qualitative approach. The Top Down Analysis and Bottom’s Up Analysis have the advantage of being more quantitatively based. Certainly, providing the Mum Factors Analysis with one of the other two quantitative approaches provides a layered argument for the allocation of Goodwill. Summary We have presented three analysis models for allocating the Goodwill of a Company – Mum Factors Analysis, Top-Down Analysis and Bottom-Up Analysis. It is important that your expert witness review the different analysis models to derive a credible and clearly conveyed allocation of Goodwill.
We have utilized all three models in the family law context and in certain tax and shareholder appraisals for allocation of Goodwill between Personal and Enterprise. Multi-Attribute Utility Model The Multi-Attribute Utility Model utilizes Factors (“MUM Factors”) that are either reflective of the existence of Personal Goodwill or Enterprise Goodwill. The appraiser then allocates between these two subsets of Mum Factors and determines a weighting based on the Mum Factors’ existence and weighting in the Company’s overall Goodwill. The MUM Factors analysis has been adopted by many courts throughout the United States. The appraiser then weights each of the identified MUM Factors. This weighting
September 2020 Vol. 192
Introducing Jennifer Mildren Legal Aid’s new Pro Bono Coordinator
Legal Aid Service of Collier County (‘LASCC’) is excited to announce that Jennifer Mildren will be joining our organization as a new, full time Pro Bono Coordinator. Jennifer’s role will include managing the Collier Lawyers Care Pro Bono Program (‘CLC’) facilitated by LASCC, which was launched in
of issues, especially housing law, family law, credit and collections, employment law, trusts and estates, probate, and more. We encourage everyone to reach out to Jennifer to say hello and welcome her to this vital role and also to volunteer for pro bono service! Barrister’s Bash event that was reset for September 17, 2020 is canceled We are saddened to announce that our 12th Annual Barrister’s Bash event – rescheduled to be held on September 17, 2020 after having been postponed in April 2020 due to COVID-19 – has been can canceled. The safety and health of all of our patrons, friends, and staff members is of utmost importance to our organization. Due to the current level of COVID-19 cases in Collier County, we will not be holding the Barrister’s Bash at all during 2020 to protect the health of all concerned and to practice appropriate social distancing to protect the entire community. Thank you to everyone who has supported our Barrister’s Bash event over the years, and all of our friends, sponsors, and patrons who pledged their support for 2020. Legal Aid will also be making future announcements regarding those very special individuals and law firms we were set to honor and recognize at the 2020 ‘Bash.’ In our next article in Adverse Witness, we plan to thank all of our supporters, and recognize those patrons and sponsors who have decided to donate their prior
2005 as a cooperative initiative between LASCC and the Collier County Bar Association to promote pro bono service and to expand access to justice to serve the civil legal needs of Collier County residents who cannot afford counsel and face matters of significant consequence to their lives. Jennifer graduated from Ohio State University with a bachelor’s degree in Journalism, and earned her J.D. from Capital University Law School. Jennifer practiced law in Illinois for a number of years with the Illinois Attorney General’s Office and later in private practice in Chicago before moving back to Columbus where she was subsequently admitted to the Ohio Bar. She worked for several years in the Ohio Attorney General’s Office as an Associate Assistant Attorney General, in the Mortgage Foreclosure Unit and later the Consumer Protection Section. Jennifer has demonstrated her passion for public service in a number of significant ways prior to joining LASCC. During law school, she worked at the school’s legal clinic and also ran a pro bono program at a men’s homeless shelter. This program was developed by the legal clinic, and Jennifer became the director and was responsible for organizing, recruiting, and overseeing student volunteers. She also actively engaged in cases for the men of the homeless shelter. This program won the Pro Bono Project of the Year Award in Columbus, Ohio. Upon relocation to Naples, Jennifer’s employment included working at Arthrex in the Risk Management & Compliance Department as an Investigation Specialist. Jennifer’s tenure at LASCC began on August 24, 2020, and she plans to take the Florida Bar Exam in February, 2021. She can be contacted by email at email@example.com. Many of our neighbors in Collier County are in need of legal services at this time due to the pandemic and the economic consequences flowing from this crisis. Many have lost jobs, experienced a large decline in income, and many others will face eviction and foreclosure when the current Moratorium enacted by Governor DeSantis expires. We are in great need of pro bono attorneys at this time on a wide range
payments made toward sponsorships or tickets for the 2020 Barrister’s Bash to Legal Aid as a straight, unrestricted donation to our program to help support our mission and the many ways we are assisting clients in need in 2020, including those deeply impacted by COVID-19. Legal Aid is exploring potential dates for the next Barrister’s Bash in 2021, but we are currently in the due diligence phase. We will make an announcement as soon as we determine how to safely conduct the event in the future. We want to thank everyone for all of your patience, support, and generosity as we navigate through these unprecedented times together!
September 2020 Vol. 192
“Sara Miles is a savior, her knowledge of all things media has proven to be invaluable throughout my time as Chief Judge. She has been able to spearhead our information process through some of the most difficult times our Circuit has faced. I don’t want to imagine going through Irma and COVID-19
they can use you as a resource. As a reporter, I once made several dozen calls to attorneys trying to get comment on a story… from that I actually made some good contacts with attorneys who I could call about a legal question or they would give me tips on a high-profile case. I would also say that social media can be a great resource for attorneys. If reporters see that you are active on social media they are more likely to reach out (if that is what they want!) or even get a story idea. What is your professional background? I graduated from Arizona State University with a degree in Broadcast Journalism from the Walter Cronkite School of Journalism and Mass Communication. I worked as an anchor and reporter in Arizona, California, Minnesota, and ended my television career in Fort Myers at NBC2. I became PIO for the 20th Circuit AOC in 2014. Why did you transition from television to a more “behind the scenes” role as PIO? I was looking for a 9-5 job with a more normal schedule. When working in TV, I missed many holidays with family and weekend outings with friends. Also in TV you sign a contract and once your contract is up they can ask you to re-sign or give you the boot. It’s nice having a more stable career. How did your work as an anchor and reporter prepare you for your job with the Twentieth Judicial Circuit? In each television market I worked in I had the opportunity to cover some aspect of court or even going into jails. I was able to experience the different rules pertaining to “cameras in the courtroom” and also learn the differences between a Clerk, PD, SAO (or DA), etc. I get a lot of questions from people now who think we are all ONE entity! While at NBC2,
without her. I cannot think of anyone more deserving of accolades than Sara. If this doesn’t make sense it’s because I wasn’t able to run it by her before responding to you.” – Chief Judge McHugh What is your position within the Twentieth Judicial Circuit? I am the Public Information Officer (“PIO”) for the Administrative Office of the Courts for the 20th Circuit. As PIO, I handle media requests, social media, public records requests, publications, education, crisis communications, events (such as Investitures, Retirements, Mock Trials, etc.), backup emergency coordinator, and serve as liaison between the judiciary and the media. You mentioned that you are a liaison between the judiciary and the media. Do you ever assist attorneys in communicating with the media? If not, are you aware of any resources for attorneys who need assistance communicating with the media? I do not. I will sometimes refer reporters to attorneys if they have questions about certain legal aspects of a case that the judiciary or I cannot comment on. My best advice for attorneys would be to gain a rapport with reporters so
September 2020 Vol. 192
I actually had covered a few trials (both civil and criminal) in the 20th Circuit so I understood what a reporter would be looking from a PIO for when I got the job here. It was also nice to be familiar with the courtrooms and courthouses in Southwest Florida. What is great about being a reporter is being able to talk to different people and ask all sorts of questions. Interviewing attorneys ultimately helped me understand the judiciary and the legal field.
What do you want members of the CCBA to know about what you do? It is especially important that Courts have Public Information Officers. With Florida having a broad public records laws and court proceedings that allow cameras in the courtroom, we serve as the first point of contact for the media as well as members of the public. One of our goals is to generate positive goodwill and understanding of the judiciary and the court system. This can be done through building constructive relationships with the media, stakeholders, and the public; showcasing positive news either in a press release, on social media, or in a newsletter; or through community outreach (Speakers Bureaus, Law Day, Mock Trials, Take Your Child to Work, etc.), to name a few. Court PIO’s are also especially helpful in getting the word out about “self-help” resources for self-represented litigants.
What is FCPIO and what is your role in the organization?
FCPIO stands for Florida Court Public Information Officers. We are the only state to have a group of PIO’s representing the Court System. It is made up of PIO’s and/or their designees in all 20 Circuits, DCA’s, Supreme Court, Florida Bar, and theOSCA (Office of the State Courts Administrator). As an organization we strive to improve the administration of justice and promote community education about the judiciary whether it be though social media, websites, mock trials, tours, speaking engagements, etc. The mission of FCPIO is to promote professional education of Florida’s court public information officers, to encourage their professionalism, to promote and encourage the use of best practices and ethical behavior by its members, and to serve the communities in which their courts dispense justice.
I am in my first year as President of FCPIO. More about FCPIO can be found here: http://www.fcpio.org/aboutus.shtml
September 2020 Vol. 192
Steve Blount WHO WOULD HAVE IMAGINED? MEDIATION IN A POST-PANDEMIC WORLD AW
Who would have imagined? Mediation by Zoom is working for most… and here’s why. I was recently doing some research as part of my effort to improve my mediation services and stumbled upon a 2010 article entitled “2020 Vision – Where in the World Will Mediation Be in 10 Years?” by Michael Leathes. Mr. Leathes accurately predicted that technology would have an impact, and that logistics and travel would cease being impediments to mediation. His prediction of a gradual incorporation of technology, 3D imaging and Skype may have missed the mark a bit. Who can blame him? How many lawyers/mediators had ever heard of Zoom pre-pandemic? Who would have imagined it would become the “go-to” platform in literally a matter of weeks?
The reaction to Zoom mediations initially was quite dramatic. I have had attorneys refuse to even consider it. Conversely, I have had attorneys refuse to consider anything else. Some predicted it would never work, while others felt it would bring about a permanent end to in-person mediations. To be sure, there are differences in Zoom mediations from in-person mediations. The parties and attorneys must be somewhat comfortable with the technology (it’s really very user-friendly). The mediator must have a mastery of it (and most do now). Questions arise: Will the parties be appearing from their attorney’s office or from their backyard chickee- hut? (Yes, that really happened.) Will the parties connect through their laptop or cell phone? How many breakout rooms to create? What if someone loses Wi-Fi? Is there an electronic signature platform available to execute settlement agreements or other documents and do the parties have the ability to use it? Will an electronic notary be necessary? Parties often behave differently over video. Some attempt to “disengage,” such as strategically using the mute button or stepping out of the video frame as an avoidance mechanism. Also, some people are more comfortable saying certain things by video than in person. Conversely, some are less comfortable. Your mediator needs to be prepared to deal with these eventualities. The remarkable thing about my research is that, while there are many articles out there on Zoom mediation “tips and techniques,” the conclusion I reached is that the same things that made mediation work pre-pandemic, make mediation work by Zoom post-pandemic: Preparation, hard work, patience, and a recognition that self-determination and certainty are almost always preferred over a third party-determined and decidedly uncertain outcome.
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My experience with Zoom mediations both as a mediator and as an advocate suggest the following are helpful: • Preparation: Determine who is appearing from where in advance. Confirm everyone’s ability to connect and use the platform with the appropriate equipment. Make sure they have a call-in number if they lose Wi-Fi connection. Although mediation is and should be an informal process, there are still formalities that are necessary. It can be hard to keep those formalities in place when someone is appearing at mediation from their favorite chaise lounge by the pool. So, your mediator should collect the particulars of appearances in advance. Drafting a Mediation Summary and/or calling the mediator to discuss your case in advance has always been a good practice. Over Zoom, this preparation is even more important. • Hard Work: Mediation is hardly ever easy. Attorneys and mediators must keep the clients engaged. Encourage the parties to listen while muted and stay in the camera frame, and don’t let them get distracted by things outside the mediation. Oftentimes, they are in the mediation, but alone physically. When possible, have the client appear in their attorney’s office alongside their attorney. It helps maintain focus. Selecting a mediator that is prepared to work as hard as you to find a resolution the parties can agree upon is crucial. That mediator should be prepared to keep everyone focused and respectfully engaged in the process. • Patience: Take your time and work through the issues, both technical and traditional, in a methodical logical manner. Let everyone be heard. Encourage everyone to listen. Remember, it might take a while for the parties to become comfortable with the platform. Parties may become impatient while the mediator is in caucus with the opposition. Attorneys should stay in contact with their clients while the mediator is “in the other room” and keep them engaged in the process. Similarly, mediators should jump back and forth between breakout rooms as often as necessary to keep everyone engaged. I could go and on with the various Zoom mediation “tips.” At the end of the day however, Zoom mediations work well. They work well because mediation works well. As Stephen Covey famously wrote, “The main thing is to keep the main thing the main thing.” In other words, preparation, hard work, and patience will generally lead to certainty and a self- determined outcome, which is almost always preferable to the alternative. This remains true even when appearing by Zoom.
September 2020 Vol. 192
Musings of a New Judge...
Hayes. As an eighteen year old kid, no one could have told me that I would actually be so fortunate as to live my legal dreams. In my brief time on the Bench, a couple of surprising things have struck me. First, our judges made it look so easy. When I was a practitioner, I always thought being a judge must be relatively easy. After all, a judge has no clients to deal with on a daily basis. I remember the late nights and weekends preparing for trial or for a big hearing and the stress that those cases brought. What I seem to have not appreciated was the fact that while I argued strongly for my side of the case and I always (ok, not always), thought my argument was the strongest and I should never lose (although I did lose a lot), the judge’s job would be easy if he or she just listened to me. At the conclusion of the argument, I knew I had done my job. However, now as a judge, I am amazed with how difficult these decisions are in virtually every case. I love to hear great lawyers make great legal arguments! As a judge, we really do want to get the ruling right and good lawyering is the best way to be in position to do so. Second, our community needs all of us at our best! After spending twenty-seven (27) years in criminal law courts, I thought I had seen some of the worst factual scenarios our community faced. , However, in six (6) months on the Dependency Court Bench, I have been shocked by the distress many of our children, parents and extended families face on a daily basis. As the Dependency Court judge, I am extremely fortunate to have a dedicated cadre of attorneys who regularly practice in the Dependency Court helping children and families who are going through very rough times. These lawyers have been incredibly patient and understanding in attempting to get this old criminal law lawyer comfortable in the role as Dependency Court judge and I thank them for their efforts. However, we have too few attorneys handling dependency law cases and the court appointed Attorney Ad Litem conflict list is extremely dated. Please let Legal Aid or the Guardian Ad Litem program know if you are willing to help on a pro bono basis should the need arise. This is tough work, but it really is what many of us went to law school for. It gives the attorneys an opportunity literally to save a life or family.
On February 3, 2020 it was my distinct pleasure and honor to take the Bench as a recently appointed Circuit Court Judge here in Collier County. It has been an absolute whirlwind since receiving news of the appointment in late December until now. Each day for the past six (6) months, I have entered the back entrance to the courthouse after spending twenty-seven (27) years entering through the front entrances and I still find it surreal. I first became interested in the law back in the summer of 1986 between my senior year of high school and first year of college while watching Judge Hugh Hayes presiding over the sensational murder trial of Steven Benson. I witnessed my future law partner Jerry Berry and Mike McDonnell for the defense as they went up against the Brock (Jerry and Dwight) brothers for the
State. Watching the courtroom theatre changed my entire mindset of what I wanted to do for the rest of my life. As a young prosecutor here is Collier County in the early 1990s, I worked alongside the Brock brothers and was able to glean experience from them. Then as a criminal defense lawyer for over twenty-six years, I was blessed to work alongside Jerry Berry, Donald Day and Janeice Martin as partners for twenty (20) of those years. I was always in awe of the command Mike McDonnell had in any courtroom he graced, but I was even more impressed with the person he was. Mike was always someone I could count on for a kind word when difficulties arose. To close out my Benson trial contacts, my chambers now sit one office away from Judge
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Musings of a New Judge...
Third, I have come to hate Zoom! I never knew anything about Zoom until confronted with the pandemic. It was at that point that my twenty-one year old daughter Sophie taught me the wonders of technology. She patiently walked me through the process and we have not looked back since. Over 800 hearings later, we continue to plod through using Zoom. Thanks to our Dependency Court case manager, Judy Groos, I have a list of things I never thought I would say as a judge, but have stated on the record… • Sir, please put a shirt on • Sir, please put the cigarette out • Sir, please stop vaping • Sir, please stop grossing us all out and kindly spit your wad of tobacco out of your mouth…off camera • M’am, Sir, Grandma, Grandpa….Please turn your video on • M’am, Sir, Grandma, Grandpa…You’re on mute. You’re still on mute. PLEASE press the unmute button. • Sir – are you driving?.....a truck? PLEASE sir, stop your vehicle and park immediately • Sir, M’am….Please sit up. You are in a Court proceeding. You might want to get out of bed. • M’am, I’d suggest if you don’t have a driver’s license, you STOP driving that car. M’am….please don’t say you’re not driving, when it is clear to everyone on this video that you ARE driving • Sir, M’am PLEASE stop moving around and STAND still! • Counsel…please turn your video on. (Reply: Ok – let me put a shirt on first) • Are those chickens I’m hearing? • Is that a goat?
I can’t help wonder how Judge Blackwell and Judge Reece would have liked Zoom. They probably would have loved it! We have all lived and worked through unprecedented challenges since March, 2020 as COVID-19 has ravaged our community, state and country. The Florida Supreme Court, our chief judge of the 20th Judicial Circuit (Judge Mike McHugh) and our local administrative judges (Judge Joe Foster and Judge Rob Crown) have done an incredible job offering support to all of us in the judiciary to assist us in providing services to our community. I was in “in-person” judge for a little more than one (1) month and have been a “Zoom” judge for over five (5) months now. While we are all doing whatever we need to do to conduct these virtual hearings at this time, I am very anxious to return to normal court where all of us can interact on a daily basis. Be safe and thank you for your continued efforts on behalf of the people in our community.
“our judges made it look so easy. When I was a practitioner, I always thought being a judge must be relatively easy .”
September 2020 Vol. 192
THE “INTERESTING” ATTORNEY/CPA
Basil Bain AW
Environment and Concepts, (3) Financial Accounting and Reporting and (4) Regulation (which includes taxation, among other subjects). A passing score must be achieved on all four sections, which, in times past had to be taken together, but which now may be taken separately. Also, there is now a requirement for the CPA candidate to have one year of work experience prior to obtaining a Florida CPA license. After being issued the license, Florida CPAs are required to complete continuing professional education (CPE) to maintain the CPA license. The requirement consists of 80 CPE hours every two years. Why Become an Attorney/CPA? A natural question is why one would go through the trouble of becoming an attorney/CPA and maintaining both credentials. From my observation and experience, I think it is fair to say that many attorney/CPAs did not initially intend to obtain both credentials. For many attorney/CPAs, the process involved a progression from working first as a CPA before deciding to enhance their own professional development and the level of service they could provide to their clients by becoming an attorney as well. For example, intheareaof taxation, theCPA may expand services beyond tax return preparation to more sophisticated tax, business and/or estate planning, as well as representation of clients in tax controversies and litigation in state and/or federal courts. Although CPAs may represent clients in certain matters before the IRS and DOR, if litigation in state or federal court is required, at that point, usually
an attorney would be required to represent the client further. Additionally, in the tax planning and litigation arenas, enhancement of client service can apply in the area of the privilege that extends to communications with clients. Although Florida has a CPA/ client communications privilege, this statutory privilege has certain limitations that do not apply to the long-standing attorney/client privilege. See, e.g., Hayes v. U.S., 407 F. 2d 189, 192 (5th Cir. 1969). There are other scenarios, however, where attorney/CPAs undertake to practice both professions at the same time, and, sometimes, maintain separate entities, offices and procedures for practicing the two professions. Some dual professionals employ the dual practice structure to maintain a separation between a tax preparation/tax compliance practice, where certain privileges may not apply, from a more traditional law practice, where such privileges might be intended to have full application. Although practicing both professions side by side can present some ethical and other challenges, it has been done successfully by a number of attorney/ CPAs around the country. I have met a number of these dual professionals through my involvement in the American Academy of Attorney- Certified Public Accountants (AAA- CPA). The AAA-CPA was founded over 50 years ago and is “committed to safeguarding the right of the public to access the unique expertise of professionals who are or have been dually qualified as Attorneys and Certified Public Accountants.” CONTINUED ON PAGE 31
Introduction I am writing this article because the editor suggested that a discussion concerning one professional being both an attorney and certified public accountant (CPA) might be “interesting” to the readers. As an attorney/CPA for over 20 years, I was skeptical of the editor’s suggestion, so I looked up the definition of “interesting” and compared it to what I knew about the topic. I found the definition of the word (“holding the attention”) too broad for me to honestly refute the AFloridaCPAcandidatemustcomplete at least 150 hours of undergraduate and graduate coursework with a concentration in accounting and business, including the attainment of at least a baccalaureate degree from an accredited college or university. Many Florida CPAs, however, have also attained a graduate degree as part of completing the coursework that is required to obtain a CPA license in Florida. editor’s suggestion. CPA Requirements Florida CPA candidates also must pass the Uniform CPA Examination, which is administered by the American Institute of Certified Public Accountants and is composed of four sections: (1) Auditing and Attestation, (2) Business
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