Prominent Attorneys Move to Shutts & Bowen, Latest Sign of Major Shift in Florida’s Legal Landscape

By NANCY SMITH
August 23, 2019 – 6:00am

For more than two decades the elite Miami Appellate Department of Greenberg Traurig was the most sought-after dream team for high-stakes court battles in Florida. Along with its Tallahassee partner Barry Richard of 2000 election recount fame, Greenberg Traurig was the go-to law firm for Fortune 500 companies with the resources to hire the very best.

 Ron DeSantis oversees Jan. 22 swearing-in of Justice Carlos Muñiz

So when Julissa Rodriguez, chair of Greenberg’s Miami Appellate Department left this week to join Shutts & Bowen, it got the attention of people throughout Florida’s business and legal communities. But to some insiders, Rodriguez’s move to Shutts was no big surprise.

 Julissa Rodriguez

“There has been a seismic shift in the Florida judiciary toward constitutionalist judges who follow the textualist judicial philosophy advocated by the late Justice Antonin Scalia,” said Bob McClure, president of the James Madison Institute, prominent Tallahassee-based public policy think tank. “It’s no secret that several attorneys at Shutts & Bowen worked behind the scenes finding qualified, competent jurists, and helped make that transformation happen.”

McClure is referring to the chairman of Shutts & Bowen’s Appellate Practice Group Jason Gonzalez, and his law partners Dan Nordby and Ben Gibson. Gonzalez is the state chairman of the Federalist Society, founded by Scalia and others. Gonzalez and Nordby served as general counsels to Govs. Charlie Crist and Rick Scott, and Gibson served as general counsel to Gov. Ron DeSantis’ transition office. The governor’s general counsel serves as chief advisor on all judicial appointments. Every current member of the Florida Supreme Court was appointed during the terms of service of Shutts partners Gonzalez, Nordby and Gibson, and the trio had various roles in the appointments of more than half the 63 judges on Florida’s five district courts of appeal.

“Shutts has continued to build an outstanding team with the addition of Ben Gibson last year, and Dan Nordby and Julissa Rodriguez this year,” said William Large, president of the Florida Justice Reform Institute, which has retained Shutts to file briefs in several high profile appeals. “It makes a lot of sense to hire textualist lawyers to argue before textualist judges. 

“Lawyers trying to make public policy arguments to the new majorities on these courts will be in for a rude awakening,” Large added.

An article earlier this year published in National Review noted a similar phenomenon at the federal level following the addition of Justice Neil Gorsuch and Justice Brett Kavanaugh to the U.S. Supreme Court. Both of the new justices, as well as Justice Clarence Thomas and Justice Samuel Alito follow a text-based judicial philosophy and have been active Federalist Society members for many years. “Originalism and textualism dominate the Supreme Court but are foreign to the legal academy,” wrote Nicholas Gallagher. And for the time being, only a handful of Florida lawyers are genuine textualist practitioners.

“I believe Florida now has the finest judiciary in the entire nation. Our goal all along was to remove the politics and personal ideology of judges from the process, and that happens when our courts are applying textualist and originalist principles in their opinions. Textualism is not a second language to the lawyers in my office. We’ve been preaching it for two decades, even when we were in a tiny minority. Now we are able to attract the finest attorneys in Florida like Julissa Rodriguez and offer our clients optimal trial and appellate representation,” said Gonzalez.

Florida Chamber of Commerce President Mark Wilson said he agrees. “In addition to the Florida Chamber’s efforts and superb judicial appointments by the governor,” explained Wilson,  a small group of judges and lawyers including the Shutts team have changed the legal culture in Florida for decades to come. It’s an entirely new legal landscape that’s bringing consistency and predictability to Florida’s civil justice system. That’s good news for individual liberty and good news for job creation and economic development.”

Reach Nancy Smith at [email protected] or at 228-282-2423. Twitter: @NancyLBSmith

http://www.sunshinestatenews.com/story/prominent-attorneys-move-shutts-bowen-latest-sign-major-shift-floridas-legal-landscape

Report Details Continued Growth in AOBs … Thanks to a Handful of Busy Attorneys

By SUNSHINE STATE NEWS
March 27, 2019 – 2:00pm

State law intended to benefit insurance policyholders continues to generate an ever-increasing windfall for trial lawyers and the repair vendors who hire them, according to a newly updated report released today by the Florida Justice Reform Institute.

The report uses data from the Florida Department of Financial Services’ Service Of Process database, updated through 2018, to show the widespread growth of Assignment of Benefits (AOB) lawsuits.

“This updated report details how out-of-control AOB lawsuits based on the one-way attorney fee continues to accelerate, driving up overall litigation and costs for policyholders,” said William Large, president of the Florida Justice Reform Institute

But guess what?

The Florida Justice Reform Institute points its finger at a handful of lawyers filing most of the AOB lawsuits, but it fails to connect the dots on at least one embarrassing and another ironic fact:  Two of the most prolific filers of AOB lawsuits — Malik Law Group and Hale, Hale and Jacobson (the firm of Florida Justice Association spokesman Lee Jacobson) are members of the Restoration Association of Florida, the very group that contends it is opposing AOB reform on behalf of consumers.

Here’s what the report says:

“… A fifth of all property AOB litigation is filed by 5 firms representing 6 attorneys. In PIP AOB lawsuits, an analogous pattern is seen. It is worth noting that PIP AOB attorneys seem to be the most prolific lawsuit filers — for example, a search in the DFS system for PIP attorneys demonstrates that one lawyer filed over 30,000 PIP AOB lawsuits in 2018.”

The report continues, “Confirming FJRI’s previous analysis of the shift from AOB starting in PIP and then moving to other coverages, there are several firms that do multiple types of AOB work. For example, the well-known Morgan & Morgan does AOB lawsuits for PIP, auto glass, and property, as does Hale, Hale & Jacobson (embarrassing) Other firms, such as Malik Law (ironic) and Emilio Stillo PA, work in at least two of these coverage areas, filing hundreds — sometimes thousands — of lawsuits annually.”

Find a copy of the new report HERE.

At the heart of the AOB problem is the one-way attorney fee statute designed to give policyholders equal footing in disputes with insurers. Some vendors use AOBs to seize control of this special policyholder right, and then file expensive lawsuits based on inflated claims. Sometimes these lawsuits even happen without the policyholder’s knowledge or consent.

This lawsuit-for-profit scheme has become an incentive for trial lawyers and their vendor clients — often water damage remediation firms or auto glass shops with aggressive marketing schemes.

Updated with new data through 2018, the report, authored by FJRI counsel Ashley Kalifeh of Capital City Consulting, contains some startling insights:

•    For the eighth consecutive year, AOB lawsuits make up more than half of all lawsuits filed against insurers statewide.

•    In 2018, 18 percent more AOB lawsuits were filed than in 2017.

•    From 2008 to 2018, AOB lawsuits increased by over 900 percent, while total lawsuits in that same period increased just over 400 percent.

•    Five firms filed more than 20 percent of all property AOB lawsuits. Even worse, nine firms filed nearly 85 percent of all auto glass AOB cases.

•   In a troubling development, some lawyers are also setting up their own repair businesses, so they can profit from both the abuse and the lawsuits.

•   AOB lawsuits are still concentrated in a few Florida counties, raising questions about statistical probability. In 2018, almost half of all property AOB lawsuits were filed in Miami-Dade and Broward counties, while the vast majority of all auto glass AOB lawsuits were filed in Hillsborough and Orange counties.

“While Florida is a growth state, AOB lawsuits are growing much faster than the population, going from little more than a few hundredths of a point as a fraction of Florida’s population to nearly a full three-quarters of a percent now,” said Kalifeh.

“Unfortunately, rampant AOB lawsuits threaten our confidence in the state’s legal climate,” said Large. “The Legislature can help the people of Florida by standing up to the trial lawyers and passing meaningful AOB lawsuit reform.”

The Florida Justice Reform Institute was created in 2005 to fight wasteful civil litigation through legislation, promote fair and equitable legal practices and provide information about the state of civil justice in Florida.

http://www.sunshinestatenews.com/story/fjri-update-details-continued-growth-aobs-thanks-handful-busy-attorneys

Judge Barbara Lagoa Is DeSantis’ First Supreme Court Pick

By NANCY SMITH
January 9, 2019 – 10:00am

Judge Barbara Lagoa, a rock-solid, rule-of-law conservative from Miami and the first Cuban-American woman to serve on the Third District Court of Appeal, is Gov. Ron DeSantis’ first of three Supreme Court selections.

DeSantis, standing with Lagoa and Lt. Gov. Jeanette Nuñez at the Freedom Tower on Biscayne Boulevard in Miami, made the announcement at 10 a.m. It was one of his first orders of business in office and one of his highest priorities.

She is the first Hispanic woman in history to serve on the Florida Supreme Court. Her appointment, replacing retiring Justice Fred Lewis, is effective immediately.

“Justice Lagoa’s proven commitment to upholding the rule of law, unparalleled legal career and vast experience on the appellate bench, distinguish her among the most qualified individuals to serve on our state’s highest court,” said DeSantis. “It is my pleasure and my privilege to appoint Barbara Lagoa to the Florida Supreme Court with full confidence she will serve our state with the utmost integrity.”

Lagoa, 51, had the most appellate experience among the 11 justice nominees. In June 2006 Gov. Jeb Bush appointed her to fill the Third DCA vacancy created by the retirement of Judge David Levy. Most recently, she was the chief justice-elect for the Third DCA.

Over her 12 years on the appellate bench, Justice Lagoa has heard more than 11,000 cases and issued more than 470 written opinions.

Before her appointment, she worked for three years as an assistant U.S. attorney in the Southern District of Florida. While a practicing lawyer, she was admitted to practice by the Florida Bar, the United States District Courts for the Middle and Southern Districts of Florida, and the United States Court of Appeals for the Eleventh Circuit. She was also a member of many local, state, and national professional groups, including the Dade County and American Bar Associations.

Prior to joining the bench, Lagoa practiced in both the civil and criminal arenas. Her civil practice focused on general and complex commercial litigation, particularly the areas of employment discrimination, business torts, securities litigation, construction litigation, and insurance coverage disputes. She worked at numerous prominent law firms in Miami, including Greenberg Traurig and Morgan, Lewis & Bockius.

As a practicing attorney, she was one of a team of mostly pro-bono attorneys in 1999 who represented the American family of 6-year-old Elian Gonzalez. Though her side won the case, in an event that captured world attention, President Bill Clinton and U.S. Attorney General Janet Reno sent armed U.S. agents into the home, seizing the boy and ignoring the rule of law. They returned him to Cuba. Fox News analyst Dick Morris joked at the time that Hillary Clinton’s next book will be called “It Takes a SWAT Team.”

In 2003, Lagoa joined the United States Attorney’s Office for the Southern District of Florida as an assistant United States attorney, where she worked in the Civil, Major Crimes and Appellate sections. As an assistant United States attorney, she tried numerous criminal jury trials, including drug conspiracies and Hobbs Act violations. She also handled a significant number of appeals.

Lagoa was born and raised in Miami. She received her B.A. cum laude in 1989 from Florida International University, where she majored in English and was a member of the Phi Kappa Phi honor society. She received her Juris Doctor from Columbia University in 1992, serving as an associate editor of the Columbia Law Review. Lagoa is fluent in English and Spanish.

Her civic and community activities include service on the Board of Directors for the YWCA of Greater Miami and Dade County, the Film Society of Miami, Kristi House, and the FIU Alumni Association. She was also a member of the Federal Judicial Nominating Commission. She currently is a member of the Eugene P. Spellman and William Hoeveler Chapter of the American Inns of Court, the Junior League of Miami, and Fairchild Tropical Gardens.

Justice Lagoa has received numerous awards, including the “Outstanding Women of Color” award from the Black Law Student Association and the Caribbean Law Student Association at St. Thomas Law School. The award was presented for her outstanding contributions as a sitting judge on the Third DCA.

Upon learning of Lagoa’s appointment, a delighted William Large, president of the Florida Justice Reform Institute, issued this statement: “Governor DeSantis’ appointment of Justice Lagoa as the 87th justice to the Florida Supreme Court is the first step towards fulfilling his promise to appoint judges who will interpret the law and not legislate from the bench.

“The Florida Justice Reform Institute, on behalf of the business community, has long called for judges who are textualists — who will say what the law is, and not what they think it should be — and who show deference to the Legislature as the rightful policymaking branch of government. Justice Lagoa brings these exact qualities and an impressive record to the Court at a critical time. The Florida Justice Reform Institute applauds Governor DeSantis’ on his wise and thoughtful choice that will have a profoundly positive impact on Florida for a long time.”

Florida Senate President Bill Galvano, R-Bradenton, said this: “I appreciated the governor’s comments during his inauguration yesterday in which he stressed the proper role of the judiciary … I share the governor’s concern that in recent years the power of the judicial branch has extended beyond its limited constitutional responsibility, in many cases eroding the authority of the legislative branch. I believe democracy is at its best when each branch of government exercises both authority and restraint at the appropriate time. That concept was certainly at the heart of comments we heard from the governor yesterday, and echoed again this morning with the appointment of Justice Lagoa. I offer my congratulations to Justice Lagoa (and to) … Gov. DeSantis on his first Supreme Court appointment.”

Maria D. Garcia, president of the Cuban American Bar Association (CABA), congratulated Lagoa in a letter after the Miami announcement. “For the past 12 years, Judge Lagoa has served our community and judiciary as the first Cuban-American woman on the Third District Court of Appeal. CABA is very proud of all her accomplishments and her new role in the Florida Supreme Court. … As a fellow daughter of Cuban exiles, I am excited that Governor DeSantis made such a wise choice for the Florida Supreme Court. Judge Lagoa has always set a bright example for the legal community and has an impeccable record as a jurist. …”

Lagoa is married to Paul C. Huck, Jr., the former general counsel to Gov. Charlie Crist and a former South Florida Water Management District Governing Board member. He now is a partner at Jones Day in Miami.

The couple have three children.

Over half of the 11 nominees to the Florida Supreme Court hail from South Florida. The overrepresentation is in part because one of the open seats had to be filled with a nominee who lives in the Third appellate district, which includes Miami-Dade and Monroe counties.

Justices Barbara Pariente and Peggy Quince also have mandatorily retired, leaving DeSantis two more seats to fill.

A total of 6 of the 11 nominees are from South Florida. The three eligible for the Third DCA seat were John Daniel Couriel, Barbara Lagoa and Robert J. Luck. The other two at-large seats have no geographical restrictions.

Reach Nancy Smith at [email protected] or at 228-282-2423. Twitter: @NancyLBSmith.

http://sunshinestatenews.com/story/breaking-news-judge-barbara-lagoa-desantis-first-supreme-court-pick

The ‘Five Million Dollar Ant Bite Case’ Goes to Appeals Court … as the Legal World Watches

By NANCY SMITH
February 27, 2018 – 2:15pm

  First District Court of Appeal

A Hamilton County jury verdict that has drawn the attention of national legal scholars and civil justice reform advocates goes before the First District Court of Appeal in Tallahassee next week.

If ever a case had Florida set up to repeat in 2018 as the No. 1 lawsuit-happy state — the nation’s top “Judicial Hellhole” — it’s probably going to be this one, Simon’s Trucking, Inc. (Apellant/Defendant) v.  Charles A. Lieupo (Appellee/Plaintiff).

The case arises out of a 2011 semi tractor-trailer accident on Interstate 75. The driver of the semi suffered a massive heart attack and died, causing the vehicle to veer off the Interstate and crash into the trees. But the lawsuit doesn’t involve the deceased truck driver.

The plaintiff in the lawsuit was a tow truck driver, Charles Lieupo, who heard about the accident on a dispatch radio and asked to be hired to remove the wreckage.

After first responders cleared the accident scene of any hazardous materials, Lieupo and others were allowed to remove the tractor-trailer. At the time, Lieupo told friends he had been bitten by fire ants on his legs while at the scene.

Over the next two months, medical records show Lieupo told physicians and other healthcare providers he had been bitten by fire ants. Six months after the accident, Lieupo told his pain-management doctor, “I had ants all over myself … [T]hey were in my breeches and … they were stinging.”  But at trial, his story changed dramatically.

Lieupo told a Hamilton County jury that sulfuric battery acid at the accident scene, not ant bites, had injured his legs. A medical specialist disagreed and testified at trial that Lieupo suffered from a pre-existing condition known as “venous stasis,” which is poor blood flow in the extremities. The specialist told the jury that fire ant bites, not battery acid, had irritated Lieupo’s pre-existing condition and caused the skin irritation on his legs.

The jury in rural Hamilton County, where Lieupo has lived his entire life, awarded him $5,211,500 for his injuries.

“This is one of the most egregious jury verdicts we have seen in Florida,” said Jason Gonzalez, Tallahassee managing partner for Shutts & Bowen. Gonzalez will argue the appeal before the First District Court, but he was not involved in the trial.

“Not only does this verdict defy all critical thinking when compared to the evidence, but legally, it should never have gone to trial because Lieupo could not prove the defendant was negligent, and instead filed a strict liability claim that is not allowed in personal injury cases,” Gonzalez added.

The case is drawing national attention. At a recent legal conference the lawsuit was referred to as “The Five Million Dollar Ant Bite Case.”  It’s being compared to the infamous McDonald’s hot coffee case, in which a New Mexico jury awarded $2.86 million for a spilled coffee injury on the legal theory that the coffee was “defective” because it was hot.

Tiger Joyce, president of the American Tort Reform Association that recently ranked Florida as the No. 1 “Judicial Hellhole” in America, said this case may be worse than the McDonald’s case.

“In the McDonald’s hot coffee case, the judge at least had the good sense to reduce the jury verdict by over $2.2 million,” said Joyce.  “In the Florida ant bite case the judge ignored binding Supreme Court precedent when he let the plaintiff file a strict liability claim and not prove negligence. Then the judge compounded his error by allowing the absurd $5.2 million jury award to stand.

“This case is the poster child for all that’s wrong with the Florida civil justice system,” said Joyce.

William Large of the Florida Justice Reform Institute says the “Five Million Dollar Ant Bite Case” will have a far-reaching and harmful impact if it stands.  “The judge in this case allowed a personal injury lawsuit to proceed under Florida’s strict liability environmental contamination statute that is only supposed to apply to damages to natural resources, not injuries to humans,” he said.

In 2010 the Florida Supreme Court addressed the same issue in the landmark case of Curd v. Mosaic, and the Court said personal injury claims are not permitted under the statute.

“We can’t figure out why the judge allowed this to go forward in direct violation of binding Supreme Court precedent on the issue,” said Large, who described the lawsuit as a massive expansion of liability in Florida, that if not reversed on appeal will cost Florida consumers and job creators billions in increased insurance premiums.

The case will be heard March 6 by a three-judge panel at the First District Court of Appeal.

 Reach Nancy Smith at [email protected] or at 228-282-2423. Twitter: @NancyLBSmith

http://sunshinestatenews.com/story/five-million-dollar-ant-bite-case-goes-appeals-court-legal-world-watches

Judicial Term Limits Move Ahead Amid Senate Doubts
By BRANDON LARRABEE NEWS SERVICE OF FLORIDA
February 21, 2017 – 10:00pm

egislation that would limit Florida appellate judges to two consecutive
terms in office was sent to the House floor Tuesday,
as prominent senators have begun voicing concerns about the proposal.

The House Judiciary Committee voted 11-8 on a nearly party-line vote to approve the proposed constitutional amendment (HJR 1), which would need the approval of three-fifths majorities in the House, Senate and in a referendum to take effect. Two Republicans joined all the committee Democrats in opposing the proposal.

The measure would limit Supreme Court justices and appeals-court judges to two, six-year terms, though differences on when they were appointed could mean some jurists would serve a few more years.

House Speaker Richard Corcoran, R-Land O’ Lakes, and other House members have pushed the plan as a way to increase the accountability of justices and judges, who are subject to merit retention elections at the end of each term. No justice or judge has ever lost one of those elections, in which they run unopposed for another term.

But the reaction to the plan in the Senate has been lukewarm at best, even among Republican leaders. And that could pose problems for the measure in the upper chamber. If Democrats lock down in opposition to the proposal, two GOP defections would be enough to keep it from getting the required 24 voters in the 40-seat Senate.

Senate President Joe Negron, R-Stuart, told The News Service of Florida in an interview that he believes the idea “should be given every consideration by the Senate, and it will be, the same as our Senate priorities will be carefully evaluated by the House.”

Personally, though, Negron said he shares the reservations of some lawyers and legal observers who have spoken against the bill in the House — chiefly, that the measure could force judges to consider their careers both before and after moving to the bench.

“I have concerns … about making sure that we are not inadvertently creating a problem with independence where you would have a judge, because a judge has to take care of her or his family, thinking about where they are going to land after their time is up,” Negron, an attorney, said.

The Senate has proven to be the graveyard in the past for House proposals to overhaul the appellate courts. In 2011, then-House Speaker Dean Cannon pushed to, among other things, split the Florida Supreme Court into two panels: one dealing with criminal cases and the other handling civil cases.

The proposal was dramatically downsized on the Senate floor, and the notion of breaking up the court was dropped altogether.

Sen. David Simmons, an Altamonte Springs Republican who is influential on judicial issues in the Senate, also cast doubt on the term-limit idea while saying it should be discussed during the legislative session that starts March 7.

“I’m not persuaded at this point,” said Simmons, who resisted Cannon’s proposal. “And I will be happy to hear what the arguments are in favor of it. I just think that there are significant countervailing arguments against it.”

Simmons, an attorney, pointed to the difficulty of judges re-entering private practice after a decade on the courts, but also underscored the lifetime appointments given to federal judges to limit political interference.

“You want to know the difference between our country and all those other nations out there; (it) is the fact that we have a judiciary that keeps everybody else in line,” Simmons said.

Business groups and conservative legal organizations are also bucking Corcoran’s campaign. The Florida Justice Reform Institute, an organization that backs tort-reform bills often favored by Republicans, has announced its opposition to the proposal.

“Term limits are not going to ensure the best judges are on the bench,” wrote William Large, president of the institute. “Instead they will only ensure that the best and brightest Florida lawyers rarely apply, and even when good judges manage to end up on the bench, they will be kicked off just as they are gaining the institutional knowledge and experience that make for great judges.”

The U.S. Chamber of Commerce also opposes the idea.

House Republicans say that the fears of the proposal’s critics are overblown and that the voters should ultimately be allowed to decide the amendment’s fate. Rep. Shawn Harrison, R-Tampa, questioned the idea that judges might be worried about finding employment after their time on the bench.

“I think in my experience as a litigator, ex-judges are very, very marketable,” he said.

Since being filed on Feb. 9, a Senate version of the proposal (SJR 482) — sponsored by Sen. Travis Hutson, R-Elkton — has not been scheduled for a committee hearing. Senate Judiciary Chairman Greg Steube, R-Sarasota, was circumspect Tuesday when asked about the proposal, saying he hasn’t taken a position on it.

“Senator Hutson’s going to need to see if this committee and the members of the committee — is that something they would be willing to look at?” Steube said.

http://www.sunshinestatenews.com/story/judicial-term-limits-move-ahead-amid-senate-doubts