A new battle dawns at the Florida Supreme Court

February 7, 2011/in Daily Business Review

A new battle dawns at the Florida Supreme Court

The Florida Supreme Court faces skirmishes with the Legislature over political redistricting, public defenders’ duties and their own powers, but the most contentious issue is bound to be the budget.

by Daily Business Review | February 07, 2011

Case Digest Summary

The Florida Supreme Court faces skirmishes with the Legislature over political redistricting, public defenders’ duties and their own powers, but the most contentious issue is bound to be the budget.

When Florida Supreme Court Chief Justice Charles T. Canady was called to task by a frosty state Senate budget committee to explain lavishly furnished interiors at the new 1st District Court of Appeal building, he came with the political credentials to weather the cold.

Yes, the building has 27 _at-screen TVs, granite counters and ostentatious vistas of mahogany. Granted, that looks bad on television newscasts when the state faces a minimum $3 billion budget shortfall.

But the former Republican congressman and state lawmaker who became chief justice last March wielded a reputation as a staunch conservative. Senators of the Republican majority expected to hear from a likeminded individual, and Canady did not disappoint.

He said he was implementing the recommendations of the Supreme Court inspector general on accountability in courthouse construction — courthouses should be durable, not grandiose, and functional, not luxurious.

Canady will be needing all the political capital he can raise.

A week later, he was back. This time before the Senate Judiciary Committee, Canady said Florida courts cannot bear further cuts.

Tight budgets are one of many challenges facing Canady, the Supreme Court and the state judiciary it oversees. Aside from the need to interpret issues of interest to citizens and commerce, Canady and Co. face skirmishes with the Legislature over hot-button topics including political redistricting, the duties of public defenders and even their own power to govern the judicial branch.

But for a Supreme Court overseeing a distressed court system drowning in foreclosure cases, much of what concerns the justices comes back to a lack of money.

Canady told senators that Florida ranks 45th of the 50 states in judges per capita.

“I raise these comparisons … to emphasize that Florida has a lean, efficient judicial system,” he said.

There are plenty of signs, however, that the Republican majority harbors more ill will than generosity. Three constitutional amendments proposed by the Legislature and stripped from the Nov. 2 ballot by the court enraged Republican leaders and revived the cries of “activist judges” heard after the court struck down former Gov. Jeb Bush’s school voucher program.

As soon as Canady administered the oath to newly elected House Speaker Dean Cannon on Nov. 16, the speaker complained how the work of elected representatives was “demolished by five unelected justices on the Supreme Court.” Cannon has since called for major court reform.

Senate President Mike Haridopolos has suggested justices be confirmed by the Senate; constitutional amendments should be exempt from judicial review; and justices should deliberate in open sessions.

Good for Business

From 2007-2010, the state court system’s budget was cut 10.6 percent. Politicians focusing on the lagging economy should keep in mind that the Florida Chamber Foundation said a key component for a healthy business climate is an efficient and hospitable forum for resolving business and regulatory disputes, Canady said.

His claim of efficiency may sound a little rosy. In the same speech, he as much as admitted electronic filing is barely underway and will take years to fully implement. In the meantime, 290 positions were lost and case processing times slowed.

The state’s high court may benefit from a perception that it’s more conservative than its predecessors.

Barry Richard, a veteran Greenberg Traurig appellate attorney in Tallahassee, describes today’s court as a more conservative body that “might appeal to the legislature. I think this is a very nonpolitical court.”

There may always be a knee-jerk tendency to accuse judges of political activism when they reject the work of legislators, Richard added, but he is hopeful critics will moderate their positions after reading the court’s opinions.

Legislators are watching to see how the court rules on a long column of issues sensitive to corporate boardrooms.

For example, Sylvia Walbolt, an appellate attorney with Carlton Fields in Miami, said the court is expected to act this year on a long-awaited revision of standard jury instructions for product liability cases. The Supreme Court created a committee that has worked on this since 2009, and oral arguments were heard last May.

Corporate and consumer positions were received and hotly debated, Walbolt said.

Fort Lauderdale appellate attorney Bruce Rogow believes the court is even-handed enough to retain the confidence of consumer advocates and the business community.

“I think the court is sensitive to both individual rights and business interests,” Rogow said. “If you have a leftright axis thinking, I would say if anything the court would be in the middle or just a smidge to the left, assuming ‘left’ is concern for individual rights.”

But Miami appellate attorney Joel Perwin offers a harsher view of legislative-judicial relations. Citing past examples of tort reform where the high court defended individual rights under one law, Perwin said lawmakers would change the law to undercut a whole class of consumers. For instance, caps now exist on many types of medical malpractice.

“They made the recovery so low that lawyers either don’t take the case or plaintiff’s resort to lawyers that aren’t the best,” Perwin said.

The Supreme Court has yet to review caps under that statute, Perwin said, but the court upheld a law that forces plaintiff’s into arbitration.

“A doctor defendant simply says ‘arbitration’ and non-economic money damages are slashed to between $200,000 to $300,000,” Perwin said. “The plaintiff could be a quadriplegic who is 20 with a life expectancy of 60 years, and there’s nothing they can do about it.”

Looking ahead, Perwin said plaintiff lawyers know they are viewed in Republican-controlled Tallahassee as “predatory lawyers,” and the Legislature is “going to be going after the rights of consumers with everything they’ve got.”

Tort Reform

New Year’s hangovers were barely regrets when a Senate committee passed a bill that would reverse a 2001 Supreme Court ruling on what trial evidence gets to jurors in auto defect cases.

The high court set Florida apart from most states by removing from consideration other possible causes of crashes, such as drunken driving. The only subject for consideration in crashworthiness cases would be the suspect product. Ford Motor attorney Doug Lampe told the Senate that barring juries from assigning a percentage of fault based on a review of all accident causes led to a steep rise in litigation costs.

Before the 2001 opinion, Ford had about 10 cases a year in Florida at an annual cost of $2.5 million. Since then, lawsuit filings steadily rose and are now at more than 40 at an annual cost of $30 million.

Critics of the bill claim it waters down potential damages for catastrophic injuries and gives manufacturers less incentive to make products safer.

Asked if the Legislature might go too far in protecting corporate interests, William Large, president of Florida Justice Reform Institute, said no. The institute was created by the Florida Chamber of Commerce and functions as a pro-business lobby.

“We’re trying to make sure that justice is blind. But justice isn’t deaf. We’re advocating for fairness here,” Large said. “This bill is protecting the sanctity of the jury process.”

As each tort reform bill becomes law, Perwin said trial lawyers will try to challenge them on constitutional grounds, but that doesn’t mean the Supreme Court can overturn them.

“The Legislature has a lot of latitude to interfere with consumer rights,” he said.

The Legislature is also exercising latitude in constraining the Supreme Court’s power to govern the judicial branch.

State Senate President Haridopolos expressed approval for the House Civil Justice Subcommittee’s efforts to curtail the high court’s ability to make rules on court practices and procedure. For example, the subcommittee is arguing lawmakers, not justices, should decide how speedy the speedy trial doctrine should be.

Public Defenders

This issue hints at another looming battle. The state’s overworked public defenders are gearing up for a hearing before the high court to ask for the right to turn away cases. Appealing a 3rd District Court of Appeal denial — pointing public defenders to seek a legislative solution — the Miami-Dade public defender’s office is dissecting the 5th Amendment and asking how a defendant can be guaranteed “due process of law” if he doesn’t have effective counsel.

If state law won’t let public defenders withdraw from cases due to large caseloads, they argue the law violates the separation of powers doctrine since the Supreme Court should regulate The Bar.

Judging by the Legislature’s willingness to take sides on the separation of powers doctrine, it’s likely the Republican super majority would take a dim view of a Supreme Court decision that would pressure them to beef up public defender budgets.

Haridopolos already views the high court as far more liberal than the one Richard described. Haridopolos criticized the Supreme Court for removing legislative amendments from the November ballot on the federal health care overhaul, redistricting and a property tax break.

Haridopolos and House Speaker Dean Cannon are hoping to somehow come up with a way to give the attorney general, an elected member of the executive branch, the right to review proposed amendments if the Supreme Court rejects them.

“Judicial review of amendments … continues to feed unwarranted controversy about the court’s role,” said Ronald Meyer, the Tallahassee attorney who argued against the Legislature’s redistricting amendment.

The rejected amendments lacked the “clear and unambiguous language” needed to meet judicial precedent going back to the early 1900s, he said.

Citing persistent anger over the stripped amendments, former Justice Gerald Kogan anticipates a rough year for the Supreme Court.

“I expect the environment between the Supreme Court and the Legislature will be very, very strained. Redistricting in particular is a very important topic for members of the Legislature. It’s going to be done by an independent commission. Heretofore, it was done by the Legislature,” Kogan said.

If the Supreme Court weighs in, it will be after the commission’s work is done. A legal challenge may not get to the court until 2012.

Bull’s Eye on Justices

Trial attorney Neal A. Roth of Grossman Roth in Miami has other worries about the court. Last fall’s election season included campaigns to remove judges because of their vote on one issue.

The purpose of appellate judge retention elections has been to deal with unfit judges, he said. But last year, Justices Jorge Labarga and James Perry were targeted for voting with the majority to remove the health care ballot item.

“It was a somewhat organized but unfunded Internet campaign,” Roth said. “It never became a true campaign.”

Roth’s concern is that Republican Party dominance in the executive and legislative branches might motivate party leaders to mount a serious campaign to remove justices up for retention if the high court keeps making rulings the majority party dislikes.

“Separation of powers exists in order to preserve co-equal powers of government,” Roth said. “If we get into a position where socially controversial decisions lead to replacing someone we don’t like with someone who shares our views, then what happens to checks and balances? They don’t exist.”

Not everything that happens between the branches has to be contentious, at least in Michael Minerva’s experience. As CEO of the Innocence Project of Florida, he supported creation of the Supreme Court’s Innocence Commission, which was created by Canady last year with help from Haridopolos.

“Sen. Haridopolos was instrumental in bringing that about,” Minerva said. “He really was the person in the Legislature who spearheaded the funding.”

The commission’s mandate is to examine the causes of wrongful convictions and develop policies and procedures to avoid them. He describes the commission as entirely nonpartisan — evenly represented across political parties and criminal justice jurisdictions.

“It’s entirely dedicated to fairness,” Minerva said. “And even though that may sound polyannish, I think this is one of those issues that overrides politics. No one wants a person to be convicted if they’re not guilty.”

Canady and Co. face skirmishes with the Legislature over political redistricting, public defenders’ duties and their own powers, but the most contentious issue is bound to be the budget.

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Defense Attorney can be Deposed, 4th DCA Rules

April 8, 2010/in Daily Business Review

Benlate Case Defense attorney can be deposed, 4th DCA rules

March 11, 2009

Tallahassee tort reform advocate railed in a newspaper column against sanctions after Broward Circuit Judge Charles Greene tossed chemical maker DuPont’s defenses for defrauding the court in a pair of multimillion-dollar cases.

The key players in the Benlate case

But the origin of the opinion article published last September by the South Florida Sun Sentinel and attributed to attorney, William Large, president of the Florida Justice Reform Institute, has landed him and DuPont attorneys with Shook Hardy & Bacon in hot water. The letter characterized the punishment imposed by Greene on DuPont as the “civil death penalty.”

Attorneys representing Ecuadorean shrimp farmers who sued DuPont over damage blamed on its fungicide Benlate contend Shook Hardy attorneys wrote the opinion article and solicited Large to submit it for publication in a bid to influence the jury pool in forthcoming trials.

Large acknowledges receiving a draft from DuPont attorneys but maintains he substantially rewrote it before submitting it to the newspaper.

Large’s 400-word article set off a chain reaction that prompted Greene to impose a blanket gag order with a threat of contempt if the parties violate the ban. DuPont appealed the gag order, and Large unsuccessfully appealed an order requiring him to submit to a plaintiff deposition.

Confidentiality rules limit what The Florida Bar can say about complaints against attorneys. But Bar spokeswoman Karen Kirksey said DuPont attorney Thomas Sherouse, a Miami partner with Shook Hardy, has a confidential complaint pending against him over a letter, which she couldn’t discuss.

Large is not facing a Bar complaint, Kirksey said.

DuPont spokesman Dan Turner declined comment. Sherouse did not return calls for comment by deadline.

Plaintiff attorney Ivan Cabrera of Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee in Fort Lauderdale declined to comment, citing the gag order.

Court records, however, show the judge had considerable concerns over whether the article’s intent was to influence potential jurors in the case.

The 4th District Court of Appeal cleared the way last month for plaintiff attorneys to depose Large to determine DuPont’s involvement in the op-ed piece. A 2-1 ruling March 10 upheld Greene’s previously unreported Dec. 22 order.

The judge wrote Large “was nothing other than a conduit or signatory (after revision) of the ‘op-ed’ article, which was prepared by DuPont’s counsel, Shook Hardy & Bacon.”

“The selection of the Sun Sentinel by a public relations firm — a daily newspaper originating in Broward County, within three to three-and-a-half months of the scheduled trial — gives rise to proper inquiry as to whether … [it] was an attempt to influence public opinion in order to prevent the parties from obtaining a fair and unexposed” jury pool, Greene wrote.

He found Large’s First Amendment rights were “outweighed by the integrity of the judicial process that DuPont has sought to compromise.”

The plaintiffs want to subpoena “the person with most knowledge” at Shook Hardy & Bacon about the letter. The plaintiffs seek “all communication, correspondence, notes, memos, telephone messages, e-mails, including metadata.”

The plaintiffs also seek billing statements for time DuPont counsel spent on the op-ed piece.

Gag Appeal

DuPont also appealed Greene’s gag order, which is set for oral arguments Tuesday.

The gag order is so broad that it prevents the company from even talking about the case to shareholders, DuPont’s appellate brief said.

“The trial court’s order violates every possible rule of law dealing with prior restraints on speech and cannot stand,” DuPont appellate attorneys Rodolfo Sorondo Jr. and Christopher N. Bellows of Holland & Knight wrote in January.

DuPont suggested a better option would be to make sure future jurors were not influenced by the op-ed piece.

The shrimp farmers responded in court papers that DuPont’s actions were “merely the latest in a long line of improprieties in this and many other cases,” including several sanctions in the Broward Circuit Court cases.

“Given DuPont’s history and the evidence summarized, it is not surprising that the trial court would act quickly to cut short DuPont’s latest scheme by entering a preliminary injunction after receipt of the plaintiff’s motion for sanctions,” Miami appellate attorney Joel Perwin wrote for the farmers.

‘Dangerous Speech

In Large’s appeal to the 4th DCA, he contended he was being punished for exercising his First Amendment rights. He noted Greene did not take a similar action when plaintiff attorney Walter “Skip” Campbell responded in the Sun Sentinel to Large’s piece or when co-counsel Robert McKee was quoted in a September article in the Daily Business Review about the DuPont sanctions.

“There is nothing in this record — not a word — to suggest that Large’s speech is any more ‘dangerous’ than that of plaintiff’s counsel,” wrote Large’s attorney, George Meros Jr. of GrayRobinson.

Campbell, McKee and Meros did not respond to requests for comment.

Meros conceded in court papers that DuPont participated in drafting the opinion article, but Large “substantially rewrote” it twice, and the final version “bore little resemblance to the initial draft to the Sun Sentinel for publication under his name.”

Large denied receiving any money for submitting the piece. He also argued he did not have a chance to demonstrate to Greene that his article had no effect on potential jurors.

Any claim of a jury taint “is beyond fanciful and totally unsupported by evidence,” Meros wrote. “The allegedly toxic words of Large’s column consisted of five sentences on the 16th page of the Thursday paper published about five months prior to trial.”

Dead Shrimp

Ecuadorean shrimp farmers Aquamar, Molinos del Ecuador and Desarrollo Industrial Bioacuatico, or DIBSA, sued DuPont in 1997 and 1998, claiming runoff containing Benlate from nearby banana farms entered waterways and killed shellfish.

In separate negligence trials, DIBSA won a $14.3 million verdict and Aquamar won $12.3 million. Both verdicts were overturned by the 4th DCA. Another Broward judge granted a new trial after finding DuPont engaged in discovery violations by concealing a study that found Benlate could have caused the contamination.

Last June, Greene found the chemical manufacturer committed fraud that “permeated the entire litigation” by concealing information about the creation of a new Benlate formula that was not reviewed or approved by U.S. or Ecuadorean authorities and lied about the fungicide’s registration status. DuPont claimed its U.S. formula registration barred the farmer’s claims.

As a sanction, the judge found in favor of the plaintiffs on liability, leaving only the question of damages to be decided by juries.

The case was scheduled for retrial in January before Greene. The case has since been moved to Judge Patti Englander Henning, who replaced Greene in the complex litigation unit.

The first of the two trials is scheduled to take place before Senior Judge Robert Carney next month.

Jordana Mishory can be reached at (954) 468-2616.

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Fla. Attorney General Seeks to Cap Fees for Outside Counsel

March 11, 2009/in Daily Business Review

Fla. Attorney General Seeks to Cap Fees for Outside Counsel

Jordana Mishory – 03-11-2009

It’s rare for public officials to push legislation that would limit their own powers, but Florida Attorney General Bill McCollum has drafted companion bills that would do just that.

Senate Bill 1370 and House Bill 215 would limit the attorney general’s authority to contract with private attorneys for litigation and impose a contingency fee cap of $50 million.

McCollum wants to maximize the amount of money that goes into state coffers instead of lawyers’ pockets in big verdicts and settlements, and business groups have thrown their support behind the proposals.

Deputy Attorney General Joe Jacquot said the bill would codify procedures the office already follows before “something happens down the road.” McCollum has not hired any attorneys on a contingency fee basis since he took office.

“It’s just good government,” Jacquot said.

But critics contend the proposals could handcuff the attorney general’s office. Plaintiffs attorneys contend the state’s top lawyer should assemble the most qualified team of attorneys to take on complex cases such as securities and mortgage fraud or claims against pharmaceutical companies. The plaintiffs lawyer group Florida Justice Association is lobbying against the measure.

Lawyers who would be bound by the fee caps say the business support is a red flag.

“It begs the question of who are we doing this for,” said Debra Henley, the association’s deputy executive director. “Are we doing this for the citizens of Florida? Or the industries that might find themselves in positions of harming the state of Florida who want to make sure the best and brightest aren’t opposing them?”

William Large, head of the business group Florida Justice Reform Institute, said McCollum was elected to represent the state of Florida, and his office is “best suited” to file suits to protect its citizens.

“When the attorney general is going after a bad actor, there is seldom a conflict between his compensation and doing what is right,” and the attorney general isn’t driven by the need to get a big payday for himself, he said.

Jacquot noted the legislation binds only the attorney general’s office. He said the governor’s office and other state agencies are free to contract with attorneys for larger contingency fees. He dismissed concerns the bill is bad just because it has the support of business.

“We drafted the legislation in the attorney general’s office,” Jacquot said. “Once we have a product out there, [the businesses are] welcome to support that, and we’ll welcome support for the legislation.”

This is the second year that the proposals have been filed. They stalled in the Senate last year.

In addition to the $50 million cap, the bills would require the attorney general to do a thorough assessment of his office’s ability to handle cases. If the attorney general determined outside counsel were needed, he would have to explain why in writing and post that explanation and any contracts on his Web site. The bill also sets a sliding formula for contingency fees based on an award or settlement value.

The House sponsor, state Rep. Eric Eisnaugle, R-Orlando, said adopting policies with an eye on taxpayer dollars is especially important as the economy falters.

“It doesn’t limit the state’s ability to address grievances or serious problems in any way,” he said. “It creates accountability and transparency when the attorney general [contracts with lawyers] and creates a very reasonable aggregate attorney fee.”

The bill is sponsored in the Senate by Mike Fasano, R-New Port Richey. His chief legislative assistant, Gregory Giordano, said the bill would ensure transparency in spending by the attorney general’s office.

“We’re trying to make open to the public every possible area so they know the Legislature is trying to be as responsible as it can with every public dollar,” Giordano said.

The phrase causing consternation with plaintiffs lawyers is the cap of $50 million “irrespective of the number of lawsuits filed or the number of private attorneys retained.” Henley said you don’t know how many firms you’ll have to work with or how long the litigation could take.

Jacquot noted attorneys general around the nation are looking at the issue, and the cap amount was set after surveying law firms.

“We couldn’t think of a case that would justify something more,” he said.

Giordano said the argument that the $50 million cap is too low is not valid.

“It would allow the attorney general to hire four law firms with two lawyers per firm being paid $600 per hour for 40 hours per week for 52 weeks per year for five years,” he said. “That’s a lot of legal service for $50 million.”

Constantly cited in the discussion is the civil case authorized by Gov. Lawton Chiles against tobacco companies in the 1990s to recoup smoking-related Medicaid expenses. The state settled the case for $13 billion, and the legal “dream team” hired by the governor’s office won nearly $3 billion in legal fees through a separate arbitration with the tobacco companies.

The state contract with the lawyers authorized a 25 percent contingency fee, but payment was not part of the settlement, and several lawyers retained by the state filed liens against the settlement.

W.C. Gentry, a Jacksonville attorney who worked on the case, said if he and his colleagues faced a maximum recovery of $50 million, many attorneys wouldn’t have taken on the case. He said the legislation seems “pretty silly.”

“Why would you, as a supposedly trustworthy political servant, feel it necessary to limit your own ability to enter into appropriate contracts for the benefit of the public?” he asked.

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Benlate Case Defense attorney can be deposed, 4th DCA rules

Fla. Attorney General Seeks to Cap Fees for Outside Counsel

Florida Justice Reform Institute

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