The SUMMER 2021 - Trial Lawyers Section of The Florida Bar
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A Publication of the Trial Lawyers Section of The Florida Bar
SUMMER 2021
IN THIS ISSUE
Chair’s Message.................................................................03
Take Interest: New Statutes Add Significant
Interest Carry to Non-Payment of Construction
The Edge is prepared and published Contracts..............................................................................06
by the Trial Lawyers Section of The Florida Bar
Lewis W. “Wil” Murphy, Jr., Vero Beach
2021 Legislative Session Report: Trial Lawyers
Chair Section of The Florida Bar.............................................07
Weston Smith, St. Petersburg
Chair-Elect Trial Lawyers Present Grall & Diamond
Paul Scheck, Orlando Legislative Awards............................................................09
Secretary/Treasurer
James “Wiley” Hicks, Merritt Island Trial by Zoom: The New Trial By Fire.........................11
Immediate Past Chair
Jeffrey Levenson, Fort Lauderdale
State Judicial Liaison
Member Resources............................................................13
Nicholas P. Mizell, Naples
Federal Judicial Liaison Advanced Trial Advocacy is Back! In-Person
Clifford C. Higby, Panama City & Better Than Ever!............................................................14
Board of Governor’s Liaison
Clifford W. “Sandy” Sanborn, Panama City Sponsors................................................................................16
Special Advisor
Thomas E. Bishop, Jacksonville
Special Advisor
Bob L. Harris, Tallahassee
Legislative Consultant
EXECUTIVE COUNCIL
Kurt E. Alexander, Merritt Island
Geddes D. Anderson, Jr., Jacksonville
Kimberly A. Ashby, Orlando
Rosalyn Baker-Barnes, West Palm Beach
Jeremy C. Branning, Pensacola
Mitch Burnstein, Fort Lauderdale
Thomas H. Dart, Sarasota
Dianne Fischer, Miami
James D. Gassenheimer, Miami
Wiley B. Gillam IV, Jacksonville
John Howe, West Palm Beach
Board Certified Civil Trial Lawyers
J. Charles “Chuck” Ingram, Orlando
Kimberley Kohn, Tampa
Mark McLaughlin, Tampa EXPERIENCED | EFFICIENT | EFFECTIVE
Dennis R. O’Connor, Winter Park
Yohance A. Pettis, Tampa www.murphywalker.com
Andrew Reiss, Naples
Michele M. Ricca, Fort Lauderdale
Wayde W. Seidensticker, Naples 2001 U.S. Highway 1
Whitney M. Untiedt, Miami Vero Beach, Florida 32960
Shirin M. Vesely, Naples (772) 231-1900
Jennifer Dorminy, Tallahassee
Section Adminstrator Murphy & Walker is honored to support
the Trial Lawyers Section of The Florida Bar.
Statements or expressions of opinion or comments
appearing herein are those of the editors or contributors
and not The Florida Bar or the Section.
THE EDGE / SUMMER 2021 PAGE 02
CHAIR’S MESSAGE
a necessary and vital role in assisting the an intense, hands-on instruction from
judiciary in its efforts to move cases some of the best trial lawyers and
through discovery, trial and toward established members of the judiciary
resolution. from throughout the State. The advocates
who participate in ATA received substantial
Despite the challenges that we faced last instruction and feedback, along with
year, the Section continues to promote trial earning 40 hours of CLE credit.
advocacy by hosting significant events in
an effort to carry forward our mission. 3 The Section is again honored to publish
For example: the Florida Handbook on Civil Discovery
which will be delivered this Summer to
3 The Section hosted the annual Teachers’ approximately 1,300 members of the State
Law Symposium and the Chester Bedell and Federal judiciary. All members of the
Memorial MockTrial Competition virtually Section may download the Handbook
from Fort Lauderdale from January 20 from the Section’s website and have an
through January 23, 2021, and these two opportunity to purchase for a modest
cherished traditions hosted annually by cost a hard copy if desired.
the Section will continue in a live format
Welcome to the Trial Lawyers this term. Specifically, the Section provided 3 The Section will continue to provide an
Section of The Florida Bar. a virtual seminar that was disseminated array of educational and informative CLE
to all middle school and high school civics Programs, to include Hot Topics and
For over five decades, the mission of this and social studies teachers throughout Evidence, Advanced Medical Malpractice,
Section has been to promote access to Florida so that faculty could better explain and other meaningful topics designed to
the courts, preserve the independence the judicial system, the Federal and State enhance trial advocacy.
of the judiciary, and protect the Constitutions, and the principal of
Constitutional right to a trial by jury. separation of powers. The five topics for The Trial Lawyers Section offers many
Despite the indelible effects of the presentation included Analyzing the First exclusive benefits to its membership, and
pandemic on each of our lives, trial Amendment and School Issues, Preparing it serves as a network for both young and
attorneys throughout the State have an Presenting a Mock Trial, the Role of seasoned trial lawyers from Pensacola and
adapted and learned to utilize remote the Supreme Court in the Constitutional through Jacksonville and down to Key
technology to participate in depositions, Democracy, Anatomy of a Criminal Trial, West. The Section represents the finest
hearings, mediations and even jury trials and an Overview of the State and Federal trial lawyers from all areas of the litigation
as we recognize that our client’s interests Court Systems. Similarly, the signature practice, and we strive to support the
in seeking justice could not be suspended Chester Bedell Memorial Mock Trial interests of plaintiff’s attorneys, defense
indefinitely. We can now begin to transition Competition was again hosted by the lawyers and commercial litigators that try
from the social limitations and professional Section despite the pandemic to cases in both the State and Federal Courts.
restrictions brought about as a consequence determine the best advocates among the
of the pandemic and return to in-person participating Florida law schools, and we If you are not already a member, we
participation as we represent our clients will again host the Competition this term encourage you to join the Trial Lawyers
as trial lawyers. This year will create unique as we return to an in-person Competition. Section and help make The Florida Bar and
opportunities as we continue to implement the practice of trial law better through your
some of those remote technologies which 3 In February of this year and again in participation in our Section.
may prove to be cost and time-efficient, February of 2022, the Section will
along with the more traditional live continue to host the popular two-day Civil
participation that we as trial lawyers have Trial Update and Board Certification Respectfully submitted,
enjoyed for centuries. Review Course which provides 15 hours
of civil trial certification and business
The Trial Lawyers Section is committed litigation certification credit.
to professionalism, civility and cooperation
among attorneys while promoting 3 The heralded Advanced Trial Advocacy
efficiencies in discovery and trial practice. program was held at the Rosen Center Hotel Lewis W. “Wil” Murphy, Jr.
The current leadership of The Florida Bar in Orlando as a live event last May, and the Chair of the Executive Council
has made the standards and methods of program will again be hosted in person in of the Trial Lawyers Section
enforcement for professional conduct a May of 2022 as we will likely return to the
primary focus for this term. We, as trial College of Law at the University of Florida.
lawyers, as well as our clients and the This program is open to all trial lawyers
judiciary, are presently faced with a with a minimum of five years of experience,
backlog of cases resulting from the and the Section has incorporated a
restrictive effects of the pandemic; modernized trial problem designed to
however, we have a responsibility to play hone all advocates’ trial skills by offering
THE EDGE / SUMMER 2021 PAGE 03
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THE EDGE / SUMMER 2021 PAGE 04
THE LAW OFFICE OF
WILEY HICKS
Statewide Eminent Domain Practice, including
Property rights and Inverse Condemnation
In 2014 I began representing injured parties and their families in medical
malpractice and nursing home negligence cases. This was after 15 years
of defending identical cases as a partner in a health care defense firm.
I am very proud to now have my own law firm where I continue to use
J. Wiley Hicks, Esq. my experience to provide personalized representation to the injured and
their families. I represent clients throughout Florida and welcome the
opportunity to work with you.
305-661-6688
wiley@wileyhicks.com
5730 SW 74th Street, South Miami, FL 33143 William E. Hahn, Esq.,
MEDICAL MALPRACTICE • NURSING HOME NEGLIGENCE • PERSONAL INJURY of counsel
wes@westonsmithlaw.com | 727-408-6100 | westonsmithlaw.com
THE EDGE / SUMMER 2021 PAGE 05
TAKE INTEREST: NEW STATUTES ADD
SIGNIFICANT INTEREST CARRY TO
NON-PAYMENT OF CONSTRUCTION CONTRACTS
By Kim Ashby, Foley & Lardner LLP
Effective executed July 1, 2021, contracts Prompt Payment Law (Fla. Stat. 715.12 (5) require a reduction of the interest sought.
for construction services, improvements or (a)), will dramatically increase the remedial See Fla. Stat. 687.02 (18% per annum simple
repairs, for both public and private projects interest rate if it may be shown by the interest is the highest rate allowable to avoid
in Florida, will now carry large interest claimant that payments are wrongfully defining the contract as usurious).
penalties for non-payment. See Fla. Stat. withheld for construction services for public
ss.218.735(9); 255.073(4); 715.12(5)(a). (2021). and private construction projects. For public It will seemingly remain usurious to insert
(CS/SB 378). For contracts entered into July sector construction projects, the new law an interest clause into a contract for an
1, 2021, and thereafter, collection of late increases the interest rate to 2% per month interest rate over 18% if the obligation does
payments for construction services, new enforceable against public entities that not exceed $500,000. For obligations
construction, and repair has been greatly wrongfully withhold payment to contractors, under a contract that exceed $500,000,
enhanced by new statutory penalties and against contractors who wrongfully interest rates may carry an interest rate not
imposed on public and private parties that withhold payment to subcontractors and to exceed 25%. See Fla. Stat. ss. 687.031);
fail to make required payments for certain sub- subcontractors on public projects. 687.071(2).
construction labor, services, and material.
The current law specifies that late payments For private projects, the statutory rate The statutory amendments did not revise
bear interest at the rate specified in section contained in section 55.03 will be increased the requirements for a claimant seeking to
55.03, Florida Statutes, which provides the by an additional 12% per annum. Fla. Stat. recover on a cause of action under the
same general rate of interest on judgments. s. 715.12(5)(a). Therefore, applying the prompt pay statutes, and much has been
The current statutory rate is 4.25%. Fla. Stat. amended section 715.12(5)(a) to the existing written about the various requirements that
55.03. Florida’s Chief Financial Officer sets statutory interest rate results in the sum of must be satisfied before prompt pay relief
the rate of interest payable on judgments the existing statutory rate of 4.25% plus is available. See, e.g. M.O. Palmer, Bidder
and decrees four times a year on December 12%, for a total of 16.25%. The amended Beware: Construction Contracting By And
1, March 1, June 1 and September 1. See statutes do not specify whether a contract With Local Governments In Florida, 92 Fla.
http://brevardclerk.us/civil-judgment- interest rate that exceeds the statutory rate B. Journal,(June 2018). However, new
interest-rates. is otherwise enforceable. For example, to incentive is built into bringing prompt pay
the extent suppliers and others in the claims in addition to suits on contract, lien
The amendments to the Local Government construction industry have been using 18% and bond recovery.
Prompt Pay statute (Fla. Stat. 218.735(9)), per annum simple interest in their contracts,
Public Works Prompt Payment (Fla. Stat. the statute leaves unclear whether pursuit
255.073(4)), and the Construction Contract of remedies under the prompt pay statutes
THE EDGE / SUMMER 2021 PAGE 06
2021 Legislative Session Report: Trial Lawyers Section of The Florida Bar
By Bob L. Harris
Florida’s 2021 legislative session looked big issues and advance an expansive policy intent to initiate litigation, etc. Effective Date:
distinctly different this year, in both practice agenda. The House and Senate filed 3,096 July 1, 2021.
and process, than it has in sessions past. bills during the 2021 legislative session and
Facing an early January start date for interim 465 of those bills passed one chamber. In 3 SB 420 Named Driver Exclusion (Hooper)
committee meetings and a global pandemic total, 275 bills were passed by both (Ch. 2021-96, Laws of Florida) (Fla. Stat.
with much of the nation still in its grips, chambers and were sent to Governor Ron 67.747) Authorizing private passenger
incoming Speaker of the House Chris DeSantis for signature or veto. vehicle policyholders to exclude identified
Sprowls (R) and Senate President Wilton individuals from certain coverages under
Simpson (R) moved to implement strict THE FOLLOWING BILLS PASSED BOTH THE HOUSE their MV insurance policy, including PIP
safety protocols that remained in place AND SENATE AND ARE WAITING TO BEPRESENTED coverage, property damage, bodily injury
throughout session. With access to the TO THE GOVERNOR: damage and uninsured motorist coverage.
capitol complex restricted for members of Excluded drivers must have written consent
the public, audiences in committee rooms 3 SB 72 Civil Liability for Damages of the policyholder, and not be a passenger
were empty, no lobbyists or interest groups Relating to COVID-19 (Brandes) (Ch. 2021- in the vehicle. The excluded driver must
filled the halls, meetings were conducted 01, Laws of Florida) (Fla. Stat. 768.38) separately comply with financial obligation
via Zoom, and public testimony was live Specifying requirements for civil actions requirements. Effective Date: July 1, 2021.
streamed from the Civic Center. With new based on COVID-19-related claims;
leadership, the hierarchy within the requiring the court to make certain 3 HB 35 Legal Notices (Fine) (Ch. 2021-17,
legislative process also appeared to shift determinations in such actions; providing Laws of Florida) (Fla. Stat. 50.011) Revising
this session, as we saw the House take the that plaintiffs have the burden of proof in construction as to the satisfaction of
lead on many critical policy issues. such actions; providing preliminary publication requirements for legal notices;
procedures for civil actions based on revising requirements for newspapers that
The pandemic’s economic toll on the COVID-19-related claims; requiring COVID- are qualified to publish legal notices;
tourism, a large source of Florida’s general 19-related claims to commence within authorizing the Internet publication of
revenue, was devastating. At the start of specified timeframes, etc. Effective Date: specified governmental agency notices on
the legislative session state economists Effective March 29, 2021 (Upon becoming law). newspaper websites in lieu of print
had grim predictions surrounding the FY publication if certain requirements are met;
2021-2022 state budget, and legislators 3 SB 76 Property Insurance (Boyd) (Ch. requiring the Florida Press Association to
came in expecting to face the second 2021-77, Laws of Florida) (Fla. Stat. 489.147) seek to ensure equitable access for minority
largest budget shortfall in the state’s history Providing that, for certain attorney fees populations to legal notices posted on the
– $2.7 billion. But by the end of the 60-day awarded for claims arising under surplus statewide legal notice website; requiring
session, the economy had rebounded lines property insurance policies, a strong the association to publish and maintain
quicker than projected and the state’s presumption is created that a lodestar fee certain reports on the statewide legal notice
coffers were bolstered by billions in federal is sufficient and reasonable; providing that website, etc. Effective Date: July 1, 2022.
pandemic aid. In the final week of session, certain provisions relating to homeowners’
lawmakers finalized the state budget for policies, offers of replacement cost 3 HB 421 Relief From Burdens on Real
the 2021-2022 fiscal year, which came in coverage, and offers of law and ordinance Property Rights (Persons-Mulicka) (Ch.
at $101.5 billion. Governor DeSantis vetoed coverage do not prohibit insurers from 2021-203, Laws of Florida) (Fla. Stat. 70.001)
$1.5 billion of the budget, but did not veto providing specified property insurance Revises notice of claim requirements for
the appropriation for the new 2nd DCA policies by including roof covering property owners; creates presumption that
Courthouse, or the additional judges. reimbursement schedules; revising property settlement offers protect public interest;
insurance coverages for which a notice of specifies property owners retain option to
Unprecedented circumstances aside, claim must be given to the insurer within a have court determine awards of compen-
legislators seized the opportunity to tackle specified timeframe; requiring notice of sation; authorizes property owners to bring
THE EDGE / SUMMER 2021 PAGE 07
claims against governmental entities in 3 SB 54 Motor Vehicle Insurance (Burgess) 3 SB 544/HB 161 Judicial Nominating
certain circumstances; provides property Repealing provisions which comprise the Commissions (Thurston/Driskell) Revising
owners are not required to submit formal Florida Motor Vehicle No-Fault Law; revising the composition of judicial nominating
development applications or proceed the motor vehicle insurance coverages that commissions; prohibiting a commission
through formal application processes to an applicant must show to register certain member from serving more than two full
bring claims in specified circumstances. vehicles with the Department of Highway terms; requiring appointing authorities to
Effective Date: October 1, 2021. Safety and Motor Vehicles; revising collect and release certain demographic
minimum liability coverage requirements data regarding commission members and
3 SB 1786 Florida Birth-Related for motor vehicle owners or operators; applicants for commission membership;
Neurological Injury Compensation Plan revising financial responsibility requirements specifying circumstances under which a
(Burgess) (Ch. 2021-134, Laws of Florida) for owners or lessees of for-hire passenger commission member may not vote on a
(Fla. Stat. 11.45) Requiring the Florida Birth- transportation vehicles; providing an matter and must disclose a conflict, etc.
Related Neurological Injury Compensation exception to the circumstances under which
Association to administer the Florida Birth- a person who is damaged may bring a civil 3 SB 1112/HB 651 Recovery of Damages
Related Neurological Injury Compensation action against an insurer, etc. Date: Except in Claims for Medical Negligence
Plan in a specified manner; revising as otherwise expressly provided in this act (Rodriguez/Roach) Deleting a provision
requirements for the award for compensation and except for this section, which shall take prohibiting parents of an adult child from
for claims under the plan; increasing the effect upon this act becoming a law, this recovering damages for mental pain and
maximum amount that may be awarded to act shall take effect January 1, 2022. suffering in a medical negligence suit, etc.
the parents or legal guardians of an infant
found to have sustained a birth-related THE FOLLOWING BILLS FAILED TO MAKE IT 3 SB 846/HB 561 Medical Expenses
neurological injury, as of a specified date; THROUGH THE LEGISLATIVE PROCESS IN TIME (Brandes/Maggard) Specifying that certain
requiring association employees to annually THIS SESSION, BUT COULD POTENTIALLY RETURN evidence offered to prove damages for the
sign and submit a conflict-of-interest AS KEY ISSUES DURING THE NEXT LEGISLATIVE cost of past medical expenses is admissible
statement as a condition of employment, SESSION: in a personal injury or wrongful death action
etc. Effective Date: June 21, 2021 (Upon under certain circumstances; specifying
becoming law). 3 SB 686/HB 1533 Offers of Judgement damages that may be recovered by a
(Brandes/McFarland) Authorizing parties claimant for the reasonable and necessary
3 HB 5301 Judges (House Justice to serve offers of judgment that make cost or value of medical care rendered, etc.
Appropriations) (Ch. 2021-45, Laws of certain stipulations relating to attorney fees
Florida) (Fla. Stat. 26.031) Revises the and costs; authorizing certain offerings of Note: SB 54, the repeal of Florida’s No-Fault
number of judges to include: one circuit judgment relating to jointly owned property law, did pass the House and Senate this
court judge in the Fourteenth judicial circuit; to require both individuals to either accept year, but was vetoed by the Governor.
two county court judges in Hillsborough or reject the offer; providing requirements
County; one county court judge in Citrus relating to grounds for challenging the
County; one county court judge in St. Johns validity of offers, etc.
County. Effective Date: July 1, 2021.
Berger Singerman is pleased to support the Trial Lawyers
Section of The Florida Bar.
www.bergersingerman.com
THE EDGE / SUMMER 2021 PAGE 08
Trial Lawyers Present Grall & Diamond Legislative Awards
The Trial Lawyers Section, one of The Florida Bar’s oldest and largest, is honoring two lawmakers
with its “2021 Legislator of the Year Award.”
Rep. Erin Grall, R-Vero Beach, and Rep. “She was instrumental in finally getting profit organizations. She is the past
Ben Diamond, D-St. Petersburg, were the PIP reform bill passed, which not only president of the Exchange Club of the
honored at a June 25 ceremony in St. hopefully makes the process fairer, but Treasure Coast and in 2008 was elected
Petersburg that coincided with the to the greatest extent possible, to its state board where she served as
Section’s meeting, said TLS Chair Wiley preserved the citizen’s ability to seek district director. She is also a past
Hicks. compensation and access to courts,” president of the Junior League of Indian
Hicks said. River and past president of Child Care
“We just feel like when someone goes Resources of Indian River.
above and beyond to protect the things Diamond, a St. Petersburg Democrat,
that are important to us, that they deserve has long been a champion of preserving A Pinellas County native and partner
recognition above and beyond what they access to the courts, Hicks said. with the Diamond Law Firm, P.A.,
would get through other means,” Hicks Diamond earned his J.D. from the
said. “And this year, he worked extensively University of Florida Levin College of
with the COVID liability bill, and argued Law in 2003, and his undergraduate from
Both lawmakers are attorneys who serve at every opportunity to make sure that Yale University. He was first elected to
on the Judiciary Committee, but that’s a it was not a limitation on a citizen’s right represent District 68 in 2016.
coincidence, Hicks said. Over the years, to access the courts,” Hicks said.
recipients have come from various In addition to serving on the Judiciary,
backgrounds but are selected for A Vero Beach native and partner at Grall Appropriations and Rules committees,
promoting the Trial Lawyers Section’s Law Group, Grall earned her J.D. from Diamond is the ranking member of the
goals, Hicks said. Marquette University in 2003, and an Civil Justice and Property Rights
undergraduate degree from Wake Forest. Subcommittee. He also serves on the
Established in 1967, and claiming more Environment, Agriculture and Flooding
than 5,300 members, the Trial Lawyers She was first elected to represent District Subcommittee.
Section is dedicated to assisting the 54 in 2016.
courts in improving the administration Diamond once served as general
of justice, promoting the art of trial In addition to serving on the Judiciary counsel to former Florida Chief Financial
advocacy before the courts, and and Appropriations committees, Grall Officer Alex Sink, where he helped direct
preserving and protecting the jury serves on the Civil Justice and Property the state’s response to the Deepwater
system. Rights Subcommittee and chairs the Horizon oil spill and the Great Recession.
Public Integrity and Elections Committee. In 2014, Diamond served as legal counsel
Grall, a Vero Beach Republican, is being for the committee that promoted
honored for her role in overhauling A former president of the Indian River Amendment 1, the Florida Water and
Florida’s PIP, or personal injury protection, County Bar Association, Grall has long Land Conservation Initiative.
auto insurance laws, Hicks said. been active in community and not-for- (continued next page)
THE EDGE / SUMMER 2021 PAGE 09
Her early life was defined by service Ms. Grall serves on the Board of
and leadership roles on the local, state, Directors for Marine Bank & Trust.
and national levels. Ms. Grall returned
to her hometown after law school and Representative Grall serves on the
became even more involved in following committees: Public Integrity &
neighborhood, civic, and charitable Elections Committee (Chair), Approp-
activities. Ms. Grall is a partner at Grall riations Committee, Judiciary Committee,
Law Group. and Civil Justice & Property Rights
Subcommittee.
Representative Grall has served in
leadership roles such as President of Ms. Grall has been blessed to share her
the Indian River County Bar Association life with her husband, Michael, and their
and as a member of the county’s three children. Their extended families
Representative Children’s Services Advisory Committee.
She is a past president of the Exchange
live locally and provide tremendous
services to the community through their
Erin Grall Bio Club of the Treasure Coast and in 2008 individual involvements.
was elected to the State Board, where
she served as District Director. Faith is at the core of her successes in
Representative Erin Grall is a native to
Representative Grall is also the past life and she and her family are members
Vero Beach, and represents District 54
president of Childcare Resources of of St. John of the Cross and St. Helen
in the Florida House of Representatives.
Indian River. She has also been actively Catholic Church.
She is a graduate of St. Helen Catholic
involved in local leadership organizations
School and John Carroll High School.
such as the Junior League of Indian
She went on to graduate cum laude from
River, of which she is a past president
Wake Forest University and earn her
and has planned and organized the
Juris Doctor at Marquette University.
successful Woman of the Year event.
As general counsel to Florida’s former statewide resiliency efforts to prepare
Chief Financial Officer Alex Sink, Ben Florida for the impacts of climate change.
advised Florida’s CFO in navigating the On the House Judiciary Committee, Ben
state’s response to the Great Recession, has been a leader in advocating for
and in responding to the BP Deepwater criminal justice reform. Ben strongly
Horizon oil disaster. believes our justice system must be
equitable and just for all Americans.
Following his work in the CFO’s office,
Ben and his wife Christina moved home As a member of the House Appropriations
to Tampa Bay to start a family. Ben built Committee, Ben has advocated for
a law practice and emerged as a civic building a budget that will help working
leader in St. Petersburg on a number of Floridians, and has fought to expand
critical local issues – from improving our access to health care for working
Representative transportation, to protecting our water families.
Ben Diamond Bio
and natural resources.
Ben has advocated to fund projects
In 2014, Ben was part of the legal team important to our community – from
that led a successful campaign to amend increasing services for Tampa Bay’s
Ben Diamond serves in the Florida Florida’s Constitution to provide veterans, to supporting the arts and
House of Representatives, where he dedicated funding for land and water cultural institutions that have been so
has been recognized as a leader in the conservation. important to St. Petersburg’s vibrant
Florida House Democratic Caucus. Ben economy.
was first elected to the Florida Legislature As a new member of the Florida House,
in November 2016, winning a swing seat Ben quickly built a reputation as a Ben graduated from Yale University and
that includes the City of St. Petersburg. champion for Democratic values, while earned his law degree from the
also always seeking ways to work across University of Florida Levin College of
Born and raised in Pinellas County, Ben the aisle to try to find bipartisan solutions Law, where he was Editor-in-Chief of the
learned at an early age the importance on the issues important to Florida’s Florida Law Review.
of community and public service from future.
his parents and grandparents. After He and his wife Christina live in St.
graduating from law school, Ben sought Ben has championed the need for Petersburg with their three children,
out opportunities to serve others and environmental stewardship of Florida’s Frank (8), Adele (3), and Vera (3).
to make a difference in our community land and water resources. He
and state. has been an outspoken advocate for
THE EDGE / SUMMER 2021 PAGE10Trial By Zoom:
The New Trial By Fire
Trials in normal times pose challenges. Conducting a trial remotely, due to courthouse closures,
certainly poses a unique set of challenges. James D. Gassenheimer and Christina M. Perry of Berger
Singerman LLP based in Miami, Florida, who recently conducted a four-day non-jury trial by Zoom
before the Honorable Michael Hanzman, share practical considerations based on this experience.
1. Remote Trials Require More
lists. Rather than sending voluminous should be clean and neutral. We also found
binders of documents they are unlikely to it helpful to display deposition transcripts
Preparation, Especially Regarding offer to a judge’s home, attorneys should while designations were read into the
the use of Documents reflect on which exhibits they realistically record. This allowed the parties to follow
intend to offer and cull their document sets along. Regardless, the judge should be
The formerly normal procedure of arriving accordingly. provided advanced copies of any deposition
to the courthouse with bankers’ boxes of transcripts.
documents to be marked by the clerk, 2. Screen Management Is Critical
handed to relevant parties and offered into 3. Consider How And From Where You
evidence is not an option when the Attorneys must also prepare their exhibits And Your Client Will Appear
courthouses are closed and parties appear in an electronic format since they will be
remotely. Rather, all documents must be displayed using the “share screen” function. Ordinarily in the courtroom, attorneys and
managed beforehand. This required hard To effectively present documentary their clients are seated next to each other,
copies of all exhibits to be exchanged with evidence, electronic exhibits should be allowing them to confer continuously
opposing counsel and pre-marked, with a well organized and easily accessible. Since throughout trial. This is not the case when
set delivered to the clerk, witnesses as well the screen share function reveals everything attorney and client appear remotely. In our
as the judge. This process requires visible on a computer screen, each exhibit recent trial, our legal team appeared from
advanced preparation and a high level of should be saved individually under its the conference room of our Miami office
organization. Attorneys should also be exhibit number and the desktop background while our client appeared from his home in
mindful about the length of their exhibit
THE EDGE / SUMMER 2021 PAGE 11New York. This limited our conferral susceptible to witness coaching by
time to phone calls during short mediums such as email or text. With
convenience breaks and lunch breaks. only the witness’ face and upper body
As a result, we did not have the benefit in view of the camera, there is no way
of client comment and direction during to know if they are communicating
the examination of other witnesses. We contemporaneously with others.
were also thoughtful about the positioning Attorneys should keep these considerations
of the conference room. While our legal in mind during witness examinations
team was seated around a conference and be mindful of any indications that
table, whichever attorney was a witness is being coached.
addressing the court would stand at a
podium. The purpose of this was to 6. Invoking The Rule May
Be Complicated
create a mock-courtroom environment
and have our legal team appear on only
one screen, which we found to be
BermanLawGroup effective. Our expert witness also
At any given moment in our trial, there
were at least six live cameras in view.
ADVERTISEMENT testified from our office within the same
However, the technology showed nine
screen. The downside of this approach
to twelve “connections,” whether by
was that each person appeared smaller
video or audio. These additional
on the screen which impacts the
1-800-375-5555
connections were in part attributable
viewing experience when there are
to parties logging into video on one
many individuals on the Zoom call. The
device and audio on another due to
members of the opposing legal team
technological difficulties. Chambers
appeared from separate locations and
personnel accounted some connect-
were each on individual screens. This
ions as well. However, with these
approach permitted them to appear
numbers fluctuating, it was difficult to
“larger” on the Zoom call but naturally
L I T I G AT I O N H A P P E N S prevented them from conferring easily
determine who, in fact, was listening
to the proceedings. This has
PERSONAL INJURY during the trial. The opposing legal
implications in terms of invoking the
PLANE CRASH • BOATING ACCIDENTS team’s expert witness, who appeared
Rule and preventing witnesses from
BRAIN INJURIES • BUS ACCIDENTS remotely from Brazil, was also on an
hearing the testimony of other
CAR ACCIDENTS individual screen.
CONSTRUCTION ACCIDENTS
witnesses. Tight management by
judges of the connections accepted
MEDICAL MALPRACTICE
MOTORCYCLE ACCIDENTS
4. The Pace May Be More Intense on the Zoom call would be necessary
NURSING HOME ABUSE & NEGLECT to enforce the Rule.
PEDESTRIAN ACCIDENTS We found the pace of the trial to be
7. Other Considerations
PREMISES LIABILITY • PRODUCT LIABILITY intensified by the remote format. Breaks
RIDESHARE ACCIDENTS • SLIP AND FALLS were few and abbreviated and lunch
SPINAL CORD INJURIES occurred quickly with the camera off
TRUCK ACCIDENTS Generally, a party-entity’s corporate
and microphone muted. A trial day by
WORKERS COMPENSATION representative who appears at trial from
Zoom can also last longer as parties
WRONGFUL DEATH out of state may be called by the other
appearing from home do not need to
side without the need for a subpoena.
Please call
travel to and from the courthouse.
However, it is unclear whether this
Attorney Theodore Berman or Delays caused by technical difficulties
procedure is still required under the
Attorney Russell Berman with internet connection, muting,
for a free initial remote format (absent agreement of
lagging audio and distracting
consultation anytime. counsel). In our case, we agreed to
background noise added a layer of
produce our client, who was appearing
difficulty to the process and pacing.
FREE from New York, without the need for a
CONSULTATION subpoena. However, attorneys should
24/7
be mindful of the application of such
5. Assessing Witness Credibility procedural rules even if they seem less
May Be More Difficult significant in the context of a fluid
Theodore Berman Russell Berman medium such as Zoom.
Attorney Attorney As our trial was non-jury, the judge
assessed the credibility of witnesses
1-800-375-5555 as the trier of fact. Without having
witnesses live and in plain view, the
www.BermanLawGroup.com judge was unable to assess body
Servicing all of Florida with offices in: language and other intangible factors.
Boca Raton, Stuart, Gainesville, Although there is no indication that this
Deerfield Beach, Miami & Orlando occurred during our trial, as a general
matter, the Zoom format is also more
THE EDGE / SUMMER 2021 PAGE 122021 FLORIDA
HANDBOOK ON CIVIL
DISCOVERY PRACTICE
Thanks to a joint effort of the
Trial Lawyers Section, Florida
Conference of Circuit Judges,
and the Conference of County
CONNECT
Court Judges of Florida,
the latest edition of the WITH US
2021 Florida Handbook on Civil
Discovery Practice has been FloridaTLS.org
published and is now available.
TrialLawyersSectionFlorida
TrialLawSection
Download the handbook for free
at the Trial Lawyers Section website
or purchase your hard copy through
The Florida Bar’s member portal.
THE EDGE / SUMMER 2021 PAGE 13ADVANCED
TRIAL
ADVOCACY
IS BACK!
IN-PERSON
& BETTER
THAN EVER!
ADVANCED
TRIAL ADVOCACY
From May 18-22, 2021, 125 trial lawyers and
judges/former trial lawyers gathered at the Rosen
Centre Hotel in Orlando to revive the Southeast’s
premier trial advocacy training program – in-
person! 60+ advocates and an equal number of
faculty members & experts spent four grueling
days together honing our trial advocacy skills
with a healthy dose of professionalism and a bit
of today’s evolving trial technology. From Voir
Dire & Openings, through expert witness
examinations to Closings, we did it all. We even
had mock jury deliberations. A good (and safe)
time was had by all!
THE EDGE / SUMMER 2021 PAGE 14Counting as 40 hours of CLE and constituting a trial substitute for both certification and re- certification in Civil Trial, Business Litigation and Workers Compensation, the Advanced Trial Advocacy program was sorely missed in 2020. Huge thanks go out to our advocates, our faulty, our experts and our sponsors. Advanced Trial Advocacy is a labor of love for the Trial Lawyers Section, but we truly could not put on a successful program without all of you! While Orlando was good to us, we look forward to returning to the UF Levin College of Law in Spring 2022 to renew our longstanding 30 year partnership with UF. THE EDGE / SUMMER 2021 PAGE 15
THANK YOU SPONSORS
2021-2022 SIGNATURE
SPONSORSHIP
OPPORTUNITIES
AVAILABLE
We are excited to announce
our July 1, 2021- June 30,
2022 Trial Lawyers Section
sponsorship opportunities
PLATINUM
are live on our website.
Please use the link below
to access the sponsor
benefits. As a result of our
sponsor’s efforts last year GOLD
we were able to successfully
host a post-covid Advanced
Trial Advocacy program,
keep up our active roster
of unique CLE programs,
conduct the Chester Bedell SILVER
Mock Trial Competition
and present a virtual
Teachers Law Symposium. THE LAW OFFICE OF
We ask you to meaningfully WILEY HICKS
consider sponsoring
the section to help ensure Statewide Eminent Domain Practice, including
BRONZE
Property rights and Inverse Condemnation
we are able to continue
these important programs. J. Wiley Hicks, Esq.
305-661-6688
Email Jenny Dorminy, wiley@wileyhicks.com
Program Administrator, 5730 SW 74th Street, South Miami, FL 33143
at jdorminy@floridabar.org
to secure your sponsorship
for the upcoming Bar year!
Your sponsorship will expose your business to thousands of Florida attorneys! With over
5,500 annual active members, a brand-new website, social media opportunities and
The Edge digital magazine; the opportunity to reach our members and all the other lawyers
that participate in our programs and CLE courses, is incredible.
We would be happy to customize a sponsorship package for your needs and budget! For
assistance with any of our sponsorship packages, please contact Jenny Dorminy
at jdorminy@floridabar.org.
THE EDGE / SUMMER 2021 PAGE 16You can also read
