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Friday, June 22, 2007
Third District Appointment: Judge Salter
I am currently deep into two briefs that need to finish themselves so I can blog, but let me take a moment to say congratulations to Vance E. Salter, of Miami's Hunton & Williams.

Word is out that Governor Crist has appointed him to the Third District.

Judge Salter will take the place of Judge Fletcher, who is retiring from the court.

UPDATE: The Governor's press release is available here.

Tuesday, June 19, 2007
Vetos Wanted
Today, St. Pete Times columnist Howard Troxler issued a call for the Governor to veto this bill. The recently passed measure would make signatures in support of citizens' initiatives to amend the state constitution valid only if they are submitted to elections officials within 30 days of being made.

Troxler argues that citizens' initiatives are the public's means of enacting law and that this measure is merely the latest in an unfortunate series of efforts to weaken the public's ability to place language directly into our state's governing document.

That is a legitimate populist view, but someone might point out the tension between it and the principles upon which our state and federal representative governments were founded.

You can read Troxler's column here.

Second District: Juror Challenges
This decision from the Second District addresses the harm that must be shown before an error in not excusing a prospective juror for cause will result in a new trial.

An interesting aspect of the decision is the court's choice of referring to the prospective jurors at issue by letters. The court referred to one prospective juror as Juror W and another as Juror Y. In the past, Florida courts have routinely used prospective jurors' last names or full names in written decisions.

Perhaps Florida's courts are becoming more sensitive to bringing nonparties (and their apparent biases) into the case law.

First District: Discovery of Voting Machine Secrets
The petitioners in this case sought the trade secret source code used in Sarasota's voting machines. The petitioners included Christine Jennings, a congressional candidate who lost last year's election by just a few hundred votes, as well as her supporters and others interested in voting machine technology.

The trial court denied the discovery request, and the First District rejected their certiorari petition to quash the trial court's ruling.

The decision should not be read as an affirmance of the trial court's decision. The district court's opinion never considered whether the trial court's decision was within its discretion. The district court instead concluded only that the matter did not involve the sort of irreparable harm that could be reviewed in a certiorari proceeding.

The court can review the matter when a final appeal is taken at the end of the trial court case.

Second District: Paternity
I wish I had time this morning to write at length about the public policy views at the root of this decision. They are certainly interesting, and probably not well known to the public at large.

The Second District quashed a trial court order authorizing a paternity test.

The short of the matter is that, historically, Florida has valued protecting a child's legitimacy, or at least maintaining the paternal status of someone the law recognizes as the child's father, far more than it has valued the ability of a man to avoid paying child support for a child he did not father.

Second District: Disqualification
Those interested in the disqualification of law firms based on their association with an attorney who formerly represented a present adversary, check out this decision from the Second District.

Back In Blog
That was an unplanned absence. I find myself in the middle of a number of interesting appeals, and time in this past week was a bit hard to find.

Wednesday, June 13, 2007
First District: Final Judgments
Is a judgment final if it dismisses an action "without prejudice"? In this decision, the First District explained that those words alone are too equivocal to resolve the order's finality. The court suggested that the order could be nonfinal unless it is clear from the context that the further proceedings contemplated by the lack of prejudice must be brought in a separate action.

Questions, questions: Nursing Homes and Adverse Incident Records
You may recall the much-publicized Amendment 7 that Florida's voters approved in the 2004 election as an amendment to the state constitution. The amendment gave numerous persons the right to obtain records related to adverse medical incidents occurring in "health care facilities" or under "health care providers." The amendment was promoted as allowing the public access to information relating to physicians' competence.

Do nursing home records qualify? Not in this case, said the First District. The court also certified the following to the Florida Supreme Court as a question of great public importance:
Appellate fans may wish to note that the district court was acting on a petition for writ of certiorari and the issue was one of first impression.

Questions, questions: Sovereign Immunity and Breach of Contract Judgments
Those involved in litigation against the state may be intrigued by the First District's decision in this case. The court determined that, despite the seemingly unqualified language of this statute, which states that a monetary judgment cannot be enforced against the state unless the legislature has appropriated funds to pay the judgment, a monetary judgment may be enforced against the state where the judgment is based on a breach of a written contract.

The court also certified the following to the Florida Supreme Court as a question of great public importance:

Tuesday, June 12, 2007
Second District: Ethical Reminders
In this decision, the Second District summed up its discontent with the appellant's arguments in this rather unflattering way:
Although we are reluctant to conclude that Mr. Brown deliberately misrepresented the record, we can say that he has ignored, discounted, or distorted the evidence and testimony presented to the jury and trial court. Our careful review of the record reflects no trial court error. We affirm Mr. Brown’s convictions and sentences. Moreover, we take this opportunity to remind parties and counsel who appear before us to present the facts and law in an accurate and forthright manner.
It is notable that the case was a direct appeal from a criminal conviction.

I suppose it is also notable that the appellant was represented by counsel.

Fourth District: Certiorari
In this decision, the Fourth District granted a certiorari petition, quashing a trial court's order that permitted a minority shareholder to inspect corporate records. The district court held that the trial court's order failed to contain findings to support an entitlement to inspection, and the district court explained that the disclosure of corporate records qualifies as "cat out of the bag" material for purposes of certiorari relief.

Fourth District: Medical Care
This decision from the Fourth District tells trial courts, once again, that they have no authority to dictate how a sheriff carries out the duty to provide medical care to inmates housed in a county jail.

Fourth District: Page Limits
What can a trial court do when a prisoner files a long -- really long -- rule 3.850 motion for post-conviction relief? In this case, the Fourth District explained the trial court's options, which essentially amount to dismissing with leave to amend, issuing an order to show cause why the motion should not be dismissed, or resolving the motion on its merits.

Fourth District: Course and Scope of Employment
A police officer on his way to work an hour early to study for an exam was involved in an automobile accident. The officer drove a city police vehicle pursuant to a program that allowed employees to take vehicles to and from home but required them to wear their uniform and to take action if they spotted criminal activity while driving the vehicles.

A person injured in the accident sued the city, but the trial court granted the city summary judgment. The court held that the city was not responsible for the accident because, as a matter of law, the officer was not acting within the course and scope of his employment.

The Fourth District affirmed in this interesting decision.

Second District: Waiver and Estoppel
For a concise discussion of the distinctions between waiver and estoppel, check out this decision from the Second District.

Fourth District: Partial Voluntary Dismissals
After nonbinding arbitration produced a favorable result for an employee on one claim and a favorable result for the employer on the other, both parties accepted the award on the first claim, and the employee filed a voluntary dismissal notice as to the second claim. The employer did not seek a trial on the second claim but did object to the dismissal. The Fourth District held that, under the circumstances, the second claim could be dismissed.

The decision, available here, includes some interesting language on the right to a trial in court and the role of binding and nonbinding arbitration.

Monday, June 11, 2007
Summary Views
On Friday, I had the honor of speaking at the Practicing Before The Florida Supreme Court seminar in Tallahassee, an annual event put on by the Government Lawyer Section of the bar.

The day was most interesting -- I'm sure I learned much more than I imparted. Particularly noteworthy was Justice Cantero's presentation on professionalism and his response to a question on the importance of the summary of argument section in a brief. Asking rhetorically whether one would prefer him to read a brief's summary of argument or the argument itself, he explained that the summary is, in a word, well... Let's just say he downplayed the summary of argument.

Fourth District: Custom, Standard of Care, and Experts
How meaningful is the difference between having an industry custom that favors your side's conduct and not having an industry custom at all? In this case, a defendant health club put on evidence that, at the relevant time, there was no industry custom on whether clubs should have an automatic defibrillator. The plaintiff unsuccessfully requested a special instruction to the effect that custom in the industry did not define the standard of care.

On appeal, the Fourth District affirmed the refusal to give the requested instruction, finding it dispositive that the defendant presented evidence not of a custom but of a lack of custom.

The decision is also notable for its affirmance of the trial court's decision to exclude the plaintiff's second expert from a single specialty.

Fourth District: Ancillary Jurisdiction
This decision from the Fourth District held that a trial court retained jurisdiction over a contempt matter while the final judgment in the case was on plenary appeal. The court referred to the trial court's jurisdiction as ancillary jurisdiction.

Fourth District: Standards of Review
The "clearly erroneous" standard of review is different from the "abuse of discretion" standard commonly found in Florida law, right? The Fourth District suggested as much in this decision. Footnote three.

Fourth District: Possession Instructions
In this contraband case, the Fourth District asked the standard jury instructions committee for criminal instructions to consider rewriting the instruction on possession. As the court explained, the instruction is confusing in the context of joint possession.

Tuesday, June 05, 2007
Fourth District: You CAN Always Get What You Want
Among the year's most interesting cases thus far is this one from the Fourth District. Procedurally speaking, at least.

The litigants were parties to a real estate sales contract. The plaintiff sued the defendant for specific performance of the deal. The defendant answered, presumably denying the plaintiff's entitlement to relief on various grounds, but the defendant later changed its mind. It filed a motion for an order granting the plaintiff specific performance and setting a closing date. The trial court heard the motion and granted it, and the plaintiff appealed, arguing the order was erroneous for various procedural reasons.

The Fourth District recognized that the procedural requirements surrounding the summary judgment rule were not complied with but the court found those requirements inapplicable. The defendant was not a party seeking to recover on a claim or seeking judgment in its favor within the meaning of the rule.

The court explained that the motions referenced in the rules of civil procedure are not the only motions that may be brought. The court quoted Professor Trawick's statement that "[a]vailable motions are limited only by the facts of the action and the ingenuity of the attorney."

Pointing out that the defendant's motion was duly noticed and heard, and that the plaintiff received the relief sought in the complaint -- the requested sale of the property -- the district court affirmed.

Be careful what you ask for, as the saying goes. You just might get it.

The case also contains a brief but interesting discussion related to appellate attorney's fees. The plaintiff had been entitled to fees in the trial court but the trial court did not order that relief. The defendant conceded that error at the time but before the order could be corrected the plaintiff initiated the appeal. The Fourth District reversed the order to the extent it required the parties to bear their own fees, but the district court denied the plaintiff's request for appellate fees even on this point. With respect to the issue of trial court fees, the Fourth District held that the appeal was unnecessary. The court implied that the plaintiff should have either delayed filing the notice of appeal until the admitted error was corrected or sought a relinquishment of jurisdiction to correct the problem.

Keep that result in your back pocket, appellate fans.

Fourth District: Computer Crimes
This Florida law makes it a third-degree felony to access a computer or computer network without authorization. Does the law extend to a situation where an employee authorized to access a computer network does so but then does something with the computer that he or she was not authorized to do?

No, said the Fourth District in this case.

Whew, say Florida employees who may, in a moment of weakness, have used a work computer in a way that was not exactly authorized.

You know. eBay. iTunes. Message boards.


Fourth District: Hospital Duties
Duty cases are among the most interesting court decisions. Except where a higher court's decision directly controls, there is no absolutely right or wrong answer to the question of whether a duty of care exists under particular circumstances. There is, instead, a patchwork of case law and statutory provisions, and the court's goal in any individual case is to arrive at the conclusion that, as a matter of policy, best fits within the existing law and wisely applies and advances it.

This case presented the Fourth District with a duty of care issue. The defendant hospital admitted the plaintiff's wife to its emergency room to treat her severed finger. The plaintiff assisted a nurse in treating the wife's hand when the plaintiff announced that he felt hot. A physician's assistant told the plaintiff to return to the waiting room. On the way, he fainted, fell, and was injured. He then sued the hospital, arguing that it owed him a duty to protect him from injury once he was invited to participate in his wife's care. He claimed he should have been assisted in standing up or told to sit or lie down, and that his fainting spell was foreseeable.

The Fourth District examined the situation, which presented an issue of first impression in Florida. The court held that the hospital owed no duty to the plaintiff to protect him from fainting.

Fourth District: Indigency
Those interested in indigency, and when a person is entitled to the appointment of counsel, should check out this contempt case from the Fourth District. Under unique circumstances involving an opponent whose boyfriend and chief witness had just been elected to the local circuit bench, the district court held that the defendant should have been appointed counsel for a contempt hearing.

The decision also includes an interesting discussion about the practice of allowing an opponent's counsel to prosecute a contempt matter.

Fourth District: Psychotherapist-Patient Privilege
The Fourth District granted a certiorari petition in this case, requiring a trial court to conduct a detailed in camera inspection of a psychological evaluation before any part of the document may be produced. The court held that the child-abuse exception to the psychotherapist-patient privilege is not limited to abuse of the plaintiff but that only portions of the document relating to child abuse or not otherwise protected may be produced.

Fourth District: Fourth Amendment
If the failure to advise of the consequences of refusing to take a breathalyzer test does not warrant suppressing the tests in a criminal prosecution, does the failure to advise of the consequences of refusing to permit a blood test administered under a particular statute warrant suppression? No, said the Fourth District in this case.

Monday, June 04, 2007
The Blogging Jury: Blurry, At Least To Lawyers
Yesterday, the Tampa Tribune ran this story on jurors' blogging and Internet use. The piece discussed a prospective juror who blogged at the courthouse prior to jury selection, another who blogged after being selected but apparently before trial began, and a third who blogged after a trial concluded.

Each said things that gave attorneys pause and, in some cases, prompted a motion for a new trial.

That, in turn, gave me pause. In my experience, many attorneys are uncertain about how to approach jurors' use of the Internet. Trial attorneys spend their professional lives perfecting their ability to influence jurors in the enormously controlled environment of the courtroom. The Internet complicates things by giving jurors a relatively private and nearly cost-free means to learn about a case, the judge, the justice system -- even the attorneys involved. I know two attorneys who were recently concerned when, after a trial ended, jurors approached them and asked questions indicating the jurors had done Internet research on the attorneys during the trial. The attorneys were surprised. They later wondered whether the jurors learned anything that affected their view of the case, and I got the impression the attorneys felt uncomfortable about not being able to control, or at least know, what the jurors knew of them.

Similarly, the Internet offers jurors a chance to voice their thoughts in a manner foreign to many attorneys' expectations about what can be known about a juror. Historically, jurors were anonymous members of the community, temporary embodiments of "the people." They might offer glimpses of their true personalities during jury selection, but more likely they guard themselves and carefully control their appearance. We see the person they want to show -- no more. Attorneys were generally content with this situation. All counsel were in the same proverbial boat, and no one knew or could know much about the persons chosen to decide the parties' fates. The boat is rocked today, though, when a juror uses the Internet to offer genuine glimpses into his or her personality, especially if what is conveyed is something the attorney would like to have known before deciding whether to move to strike the juror for cause or to strike the juror using a peremptory challenge.

After all, wouldn't a trial attorney look differently at a local newspaper columnist as a potential juror than an anonymous member of the public? Today's Internet -- with blogs, message boards, and personal web pages -- can make anyone's views just as publicly accessible as those of the local columnist.

What will come of these new developments in the relationship between trial counsel and jurors? I have a few thoughts. I expect that trial judges will become more thorough in instructing jurors that, during the trial, they should not research the case, the judge, the parties, the attorneys, or anything that might relate to the trial. (Hint, hint, standard jury instructions committees.) I expect attorneys to be more conscious that accounts of them on the Internet, including marketing materials they authored themselves, may need to be screened for impact on jurors.

I also expect that courts will become more helpful in releasing identifying information about the venire ahead of jury selection. Jury consultants will become more proficient at profiling the Internet dimensions of prospective jurors' lives. Perhaps even state attorneys and public defenders will gain some compelling arguments that they need funding to perform full Internet research on prospective jurors. All attorneys will likely feel the need to inquire during jury selection about prospective jurors' regular Internet "outlets" -- whether blogs, personal web pages, message boards, or some other form of Internet-based communication.

And of course, lawyers need to let go of the old world. Jurors are no longer merely a microcosm of society. They are individuals who, more and more often, showcase their individuality on a regular basis for the world to see. On the Internet. Stay tuned.

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