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The New Process for Appointment and Retention of Judges of Compensation Claims by Steven Scott Stephens Eleventh-Hour Conversions: A Joiirney Into the Labyrinth of Prehankruptcy Planning by R. Wade Wetherington COLUMNS Letters Attorney Advertising: Profound Changes in the Cover art by Joe McFadden Practice of Law by William F. Blews UPL Prosecutions Are in the Public Interest by John F. Harkness, Jr. The Price of Employees: Emplo3mient Tax Withholding and the Trust Fund Penalty by M. Robyn Cotrona Public Service Commission Practice by Charles W. Murphy Abracadabra: The Disappearance of Uninsured Motorist Coverage by David J. Zappitell and Steven R. Braten Estrogens in the Environment by Susan M. Salvatore Addiction: How Should It Be Considered in Equitable Distribution and Support Schemes? by Susana D. Gonzalez and Ben Vyzas Detison and the Scope of the Attorney-Client Privilege in the Corporate Context by Ted C. Craig and Michael J. Higer Negotiating and Litigating Music Royalties by Richard C. Wolfe Improper Jury Argument: Gilding the Lustre of the Golden Rule by John W. Reis Environmental Liabilities in Commercial Leasing: Litigation, Drafting and Tenant Management by Michael R. Goldstein and Joseph D. Richards Battery on a Law Enforcement Officer and Resisting with Violence: The Paradox of the Legal Duty Element by Daryl E. Wilcox Books 2 THE FLORIDABAR JOURNAL/JANUARY 1995 ALROO H-AW In Florida only a select few can discuss tfie specifics of a case with each other That select group is all on LawDesk®. And only on LawDesk. Only LawDesk offers Florida cases, statutes and analytical material as part of a complete integrated research library of single-disc CD-ROMs with hypertext linking. Which means only LawDesk lets you jump from one publication to another without leaving the program. All with a few simple keystrokes. With LawDesk, for the first time, you have instant access to the most complete answers about state and national questions; cases, statutes, regulations and analysis. And once you've learned how to use one LawDesk disc, you know how to use them all. So if you've been considering moving to CD-ROM, make sure you select the one that gives you all the benefits of today's technology. LawDesk. — For more information on all our LawDesk CD-ROM products call f'BOCHSSS-SSTS. « Lawyers Cooperative Publishing More Poiver^ Your Florida Pmctke. LfwOesk and ALR are regtslarad tradamarto and USCS it a trademark o4 Lawyera Cooperative PuMahirtg. "The FLORIDA BARJOLRNAL LETTERS 650 Apalachee Parkway Tallahassee, FL 32399-2300 (904) 561-5600 Editorial Staff Publisher John F. Harkness, Jr. Editor Judson H. Orrick Managing Editor Cheryle M. Dodd Associate Editor Melinda B. Mayo Advertising Director Javier Cano Update in federal courts. As such, a number Account Executive Lisa F. Harmes Soon after publication of “Vanishing of the circuit court decisions discussed Advertising Assistant Amber Pummel Circulation Deborah Rieger Precedents: Settlement Vacatur on Ap¬ in “Vanishing Precedents” will be sub¬ Art Production Judith Nable peal” in the November 1994 issue of ject to reexamination. In addition, Communications Director Park M. Trammell, Jr. the Journal, the U.S. Supreme Court Bonner Mall—although not binding on Officers of The Florida Bar issued an opinion which resolved the state courts—may be cited as persua¬ President William F. Blews, question “whether appellate courts in sive authority as Florida’s settlement St. Petersburg the federal system should vacate civil vacatur policy develops. President-elect John A. DeVault ML judgments of subordinate courts in Jacksonville Executive Director John F. Harkness, Jr. cases that are settled after appeal is Scott D. Makar Tallahassee filed or certiorari sought.” U.S. Ban¬ Jacksonville Editorial Board corp Mortgage Co. v. Bonner Mall Chair, Deborah M. Smoot, Jacksonville; Vice Chair, Judpe Thomas G. Freeman Jr., Alta¬ Partnership, _ U.S. _, 1994 WL Debates Conclusion monte Spnngs; Members, John O. Brady, 611411 (Nov. 8, 1994). Justice Scalia, The article “Covenants Not to Com¬ Jacksonville; Joseph M. Ciarciaglino, Jr., St. Petersburg; Judge Jonathan T. Colby, Miami; writing for a unanimous court, held pete: Current Conflicts and Emerging Jamie A. Cole, Hollywood; Richard D. Connor, that settlement vacatur is an “extraor¬ Issues Affecting Enforcement” (Novem¬ Jr., Orlando; Nestor E. Cruz, Annandale, VA; Ralph A. DeMeo, Tallahassee; David A. Donet, dinarily equitable remedy” that is ber 1994) provides a thorough analysis Coral Gables; Richard E. Fee, Tampa; Deborah Ford-Kaus, Sarasota; Debra D Fraser, St. justified only where “exceptional cir¬ of recent Florida decisions in an area Petersburg; Nancy S. Freeman, Orlando; Gary cumstances” are demonstrated. which is commonly litigated and which S. Gaffney, Ft. Lauderdale; Joyce G. Golden, Daytona Beach; Steven S. Goodman, Ft. Laud¬ In Bonner Mall, the parties had is subject to constant refinement by the erdale; Harvey B. Gordon-Hardy, Orlando; llyse entered a settlement after the Su¬ Florida appellate courts. Under the M. Homer, Miami; Joseph F. Kinman, Jr., Tampa; Martin I. Klein, New York, NY; Cather¬ preme Court had granted certiorari. heading Public Health, Safety and Wel¬ ine A. Kyres, Tampa; Mark F. Lewis, Tampa; The petitioner sought to vacate the fare, the authors conclude that physi¬ Karen A Linz, Palm Harbor; Sally B. Mann, Tallahassee; Linda J. McNamara, Tampa; Kathy circuit court’s opinion claiming that cians and other health care providers A. Metzger, Stuart; David K. Miller, Tallahassee; Melissa G. Mince, Seminole; Susan P. Motley, vacatur was the “established proce¬ should expect “that enforcement of a Ft. Lauderdale; Judge Celeste H. Muir, Miami; dure” under the Court’s decision in covenant not to compete in this area Robert W. Pass, Tampa; Rosemary E. Perfit, Tampa; Richard R. Roach, Jr., Lakeland; Clif¬ United States v. Munsingwear, 340 is contrary to the public health, safety, ford B. Shepard III, Orlando; Virginia P. Sher¬ U.S. 36 (1950). The Court, however, and welfare.” That conclusion is debat¬ lock, Stuart; Judge Scott J. Silverman, Miami; Murray B. Silverstein, Tampa; Jesse Leland held that Munsingwear merely con¬ able. Skipper, St. Petersburg; Rafael Suarez-Rivas, tained dicta that had not been The authors themselves note that Ft. Lauderdale; Frances H. Toomey, Tampa; John G. Van Laningham, Tallahassee; Carol uniformly applied in the Court’s subse¬ the Third District Court of Appeal in A. Wadowicz, West Palm Beach; James H. Walsh, Arlington, VA; R. Craig Waters, Tal¬ quent decisions. Humana Medical Plan, Inc. v. Jacob¬ lahassee; Nancy C. Wear, North Miami Beach; Tbe Court then held that the “princi¬ son, 614 So. 2d 250 (Fla. 3d DCA 1992), Mark J. Vitolfson, Tampa; Tonia Yazgi, Jackson¬ ville; Board Liaison, John P. CardiTio, Naples. pal condition” in determining whether rev. den., 623 So. 2d 494 (Fla. 1994), The Board of Governors vacatur is appropriate is “whether the upon rehearing, deleted a footnote ap¬ First Circuit Stephen M. Masterson; Second party seeking relief from the judgment pearing in its initial opinion which Circuit Jon Whitney, Charles A. Francis; Third below caused mootness by voluntary stated that the subject noncompete Circuit Bruce W. Robinson; Fourth Circuit Howard Coker, Victor M. Halbach, Jr., Fifth action.” Where mootness occurs by hap¬ agreement between the physician and Circuit Robert Q. Williams; Sixth Circuit Ky penstance, principles of fairness favor the HMO violated public policy and M. Koch, Anthony S. Battaglia; Seventh Circuit Edgar M. Dunn. Jr.; Eighth Circuit R. Dennis the vacatur. “Where mootness results traditional contract precepts. Approxi¬ Comfort: Ninth Circuit Bruce B. Blackwell, Lawrence J. Phalin, Lawrence G. Mathews, Jr.; from settlement, however, the losing mately one year after the Jacobson Tenth Circuit John W. Frost II; Eleventh party has voluntarily forfeited his legal decision, the Fifth District Court of Circuit Miles A. McGrane III, Edward R. Blum- berg, Raquel Matas, Manuel R. Morales, Jr., remedy by the ordinary processes of Appeal in Jewett Orthopedic Clinic, CThyonrtnhtioa nA, .J rE., vDereeatnt, CE. dCitohl sGon. ,O Sstmuaarnt ,Z J. oGhrno sWs-. appeal or certiorari, thereby surren¬ P.A. V. White, 629 So. 2d 922 (Fla. 5th man, Scott L. Baena; Twelfth Circuit Edwin T. dering his claim to the equitable remedy DCA 1993), held, at 925, that the 1990 Mulock; Thirteenth Circuit Martin L. Garcia, of vacatur.” Vacatur is therefore not amendments to F.S. §542.33 (1990) did Donald A. Gifford, Marsha G. Rydberg; Four¬ teenth Circuit James B. Fensom; Fifteenth available in such situations. As policy not make covenants not to compete Circuit Peter S. Sachs, Robert V. Romani, Michael P. Walsh; Sixteenth Circuit Karl Beck- grounds for its decision, the Court unenforceable against physicians. In meyer; Seventeenth Circuit Michele Kane Cum¬ noted that vacatur “disturb[s] the or¬ fact, the court held that “it is clear mings, Dale R. Sanders, William S. Spencer, Walter G. Campbell, Jr.; John Hume; Eight¬ derly operation of the federal judicial that before this language was added eenth Circuit S. Sammy Cacciatore; Nine¬ system,” denies the legal community by the 1990 amendments, covenants teenth Circuit Evett L. Simmons; Twentieth Circuit John P. Cardillo; Out-of-State Mar¬ of valuable precedents, and could deter not to compete had long been held guerite S. Boyd, Robert S. Weinroth; President earlier settlements. enforceable against physicians, both YLO, Lawrence J. Hamilton II; President-elect YLD, Scott Jay Feder; Public Members, Abra¬ The clear message of Bonner Mall is in Florida and in other jurisdictions.” ham S. Fischler, Richard J. Cavallaro. that settlement vacatur is disfavored Accordingly, the reasoning in Jacob- 4 THE FLORIDA BAR JOURNAL/JANUARY 1995 ^^/^ompany offers Florida attorneys as many legal products and services as we do. Excelsior/Midstate offers the most extensive Software selection of specialized law products Excelsior/Midstate is the only distributor of affordable in the state. 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The author concludes based on its percentage of negligence necessarily transferable to, or persua¬ his article by stating that if the current (in this case 60 percent); but the blame¬ sive in, circumstances involving non¬ state of the law remains intact, Florida less employee is stuck with collecting compete agreements in which the common law may become “the model only 60 percent of his general damages physician/patient relationship may simi¬ for equitably preserving the integrity and 40 percent of the workers’ compen¬ larly be affected. of the exclusive remedy concept of sation benefits, which benefits do not workers’ compensation law.” include any compensation at all for Glenn J. Waldman At the expense of becoming a “model,” intangible damages. This amount to North Miami Beach however, a nonnegligent injured em¬ the employee, in most cases, will be ployee is asked to accept less than full substantially less than what the jury Update damages. The author poses a scenario says the employee has lost. Readers of the article “Covenants in which the employer is 40 percent An understanding of the definition Not to Compete” (November 1994) negligent and the third party tortfea¬ of negligence is pertinent to the author’s should be aware of Warshall v. Price, sor is 60 percent negligent. In that conclusions. As set forth in Florida 629 So. 2d 903 (Fla. 4th DCA 1994), situation, a faultless employee obtains Standard Jury Instruction 5.1, “Negli¬ in which a noncompete between doc¬ 60 percent of the value of his claim gence is a legal cause of injury if it tors was upheld over strenuous against the negligent third party and directly and in natural and continuous assertion of the public welfare excep¬ then reimburses the employer from sequence produces or contributes sub¬ tion. that recovery 60 percent of what the stantially to producing such injury, so employee received in workers’ compen¬ that it can reasonably be said that, but Palm Beach Kenni F. Judd sation benefits. This leaves the for the negligence, the injury would not employee on the short end of the stick. have occurred.” If, but for the negli¬ Questions the “Model” The employer gets its workers’ compen¬ gence of the third party tortfeasor, an The article “Employers’ Liability Cov¬ sation payments back, less its pro rata employee’s injury would not have oc¬ erage Under the Standard Workers’ share of costs and attorneys’ fees and curred, why is it equitable that a Compensation Insurance Policy” in the less the percentage amount not recov¬ non-negligent employee, as a matter November 1994 Bar Journal is a well- ered from the negligent third party (in of law, is not allowed to obtain a full written and researched article con¬ this case 40 percent because that is the recovery from that negligent tortfea¬ sor? In this writer’s view, it would be equitable if the non-negligent employ¬ ee recovered 100 percent of the damages from the negligent tortfeasor and the Oath of Admission to The Florida Bar employer was allowed to subrogate for the full amount of its workers’ compen¬ The general principles which should “I will employ for the purpose of sation payments. It is more equitable ever control the lawyer in the practice maintaining the causes confided to me and more in keeping with the integrity of the legal profession are clearly set such means only as are consistent with of the exclusive remedy provision of the forth in the following oath of admission truth and honor, and will never seek to workers’ compensation law for a negli¬ to the Bar, which the lawyer is sworn mislead the judge or jury by any artifice gent tortfeasor to suffer the full loss on admission to obey and for the willful or false statement of fact or law; and for an employer to recover its full violation to which disbarment may be workers’ compensation pajnnents (less had. “I will maintain the confidence and attorneys’ fees and costs) than for a preserve inviolate the secrets of my non-negligent employee to collect less “I do solemnly swear: clients, and will accept no compensa¬ than the full amount of the jury’s tion in connection with their business award of damages. “I will support the Constitution of the except from them or with their knowl¬ I compliment the author for his clear, United States and the Constitution of edge and approval; concise, and informative article. I dis¬ the State of Florida; agree with the author, however, in his “I will abstain from all offensive per¬ conclusions as to what constitutes a “I will maintain the respect due to sonality and advance no fact prejudicial “model” and what constitutes “a fair courts of justice and judicial officers; to the honor or reputation of a party or and equitable balance.” witness, unless required by the justice “I will not counsel or maintain any of the cause with which I am charged; Jeffery B. Morris suit or proceedings which shall appear Jacksonville to me to be unjust, nor any defense “I will never reject, from any con¬ except such as I believe to be honestly sideration personal to myself, the cause debatable under the law of the land; of the defenseless or oppressed, or More on “Can We Talk?” delay anyone's cause for lucre or mal¬ ice. So help me God." Patrick Goggins’ letter in the No¬ vember 1994 issue, commenting on 6 THE FLORIDA BAR JOURNAL/JANUARY 1995 “Can We Talk? Communicating With Avoiding an appearance of impropri¬ Gelles and Murray A. Straus are aca¬ Former Employees of an Adverse Party ety is a legitimate goal. But Cram is demic social scientists . . . [who] fell in Litigation” (October 1994), requires only one of many cases to find that the out of favor [with feminists] because . additional comment. Mr. Goggins sug¬ benefits of this discovery outweigh the . . in both of their national surveys . . . gests that Browning v. AT&T risk. Likewise, the attorney-client privi¬ they found that women were just as Paradyne, 838 F. Supp. 651 (M.D. Fla. lege is sacrosanct. Counsel acting in likely to engage in [domestic violence] 1993), could greatly expand the class good faith will avoid breaching the as men [for]. . . both minor and severe of former employees an attorney is privilege; those who violate the privi¬ assaults.” p. 194. “[W]omen are far barred from contacting. However, he lege will always be subject to appropri¬ more likely to be injured and to need overlooks several critical points. ate sanctions. medical care. But overall, the percent¬ First, Judge Kovachevich in Brown¬ David R. Gemmer age of women who are injured seriously ing refused to apply the rationale of Tampa enough to need medical care is . . . her prior decision in Rentclub, Inc. v. small compared to . . . inflated [femi¬ Transamerica Rental Finance Corp., One-Sided Presentation nist] claims . . .—fewer than one per¬ 811 F. Supp. 651 (M.D. Fla. 1992), the The issue of domestic violence is cent.” p. 195. Similar statistics are problematical case which finds such important, but the October 1994 Bar noted in a March 14, 1994, Forbes communications improper. The com¬ Journal presentation seems one-sided. review of The Myth of Male Power by munications in Browning were held to One Journal author states that “cur¬ Warren Farrell, at p. 46. be unobjectionable. The dispositive fac¬ rent Florida statistics . . . show, Several state courts have responded tor was that the former employee in overwhelmingly, that females are vic¬ to domestic violence by accepting the Browning had sued the defendant, be¬ tims and that males are perpetrators.” battered woman s3mdrome theory of coming an adverse party, while it was p. 18. I question these statistics, and defense, which in essence gives women “feasible” that the former employee in the assumptions drawn from them. who stay in abusive relationships a Rentclub could still be represented by An associate professor of philosophy, license to kill their spouses, with pre¬ defense counsel. It is not explained Christina Hoff Sommers, specializing meditation. In Florida three out of five how a “feasible” chance of representa¬ in contemporary moral theory, cites women considered for clemency on such tion bars all communication when there contrary statistics in her book Who grounds have received “some form of’ is no such representation in fact. Stole Feminism? (1994): “Richard J. it. October 1994 Journal, p. 73. Recog- Second, Rentclub is not final. It was argued at the 11th Circuit November 1, 1994, and a decision is pending. The 11th Circuit may well align itself with the “overwhelming caselaw and com¬ Objection!! 2 mentary” supporting communications with former employees. Cram v. Lam- son & Sessions Co., 148 F.R.D. 259 (S.D. Iowa 1993). Browning is not yet " A wonderful computer video game on appeal, as trial was scheduled for the trial term commencing November for lawyers... - John Tredernck, Jr., Omrtan, ABA USER'S GflOUP 29, 1994. Third, federal discovery limitations ' ...challenging and fun... ObjectionI teaches the player to make objections quickly. '• - Kurt Copertagen, HARVARD LAW RECORD do not apply to state proceedings. As Mr. Waldman’s article ably points out, ' Its addictive and thrilling... * - Steve Irvin, INFO WORLD the Florida and ABA interpretations *■ educational... authoritative...' - Mark Rosenbush, LAW OFFICE COMPUTING of the applicable rules allow communi¬ " ...cerebral, realistic and intense. * - Jasper Silvester. COMPUTER GAMING WORLD cation except for information protected ' ...fascinating... you'll enjoy this game... * - Dennis Lynch, CHICAGO TRIBUNE by the attorney-client privilege, and a lawyer in state proceedings should be OBJECnONII 2.0, which is available for Macintosh and IBM compatibles, has improved sound and graphics, and an free to proceed accordingly. added explanation feature that cites cases and rules. It Finally, Rentclub in essence creates includes a professional manual entitled The Rules of Eviderxe for Witness Testimony, by Ashley S. Upson, Esq. a new privilege. This contravenes the (Author of Demonstrative EviderKe and Docurrientary state rule which recognizes only statu¬ EviderKe for Matthew Bender, Inc. and Law Office Automation for Prentice-Hall). tory, evidentiary, and constitutional CLE-OBJECnONII 2.0 also includes three hours of audio cassette lecture AND the trial manual privileges. F.S. §90.501 (1993). Also, COMPREHENSIVE EVIDENCE. These materials are certified by the Florida Bar for 12 hours of CLER even though the prohibition against credit, and 9 hours of CIVIL TRIAL Certification credit. an appearance of impropriety (Rent- To order CLE-OBJECTION!! 2.0 Call 1-800-832-4980 ext 387 club's rationale for limiting com¬ or Mail $289.00 (+ $10 Shipping & Handling). |4 1 Q] 1-9764 munications) is grounded in Florida For a norvCLE version, send $139.00 (+$10 S&h) to: / law, Florida has not overruled Profes¬ '-Ir R ANSMEDIA _ S2u7i3te5 BN-2o rth Holland-Sylvania Rd. FAX: (419)531-0362 sional Ethics of The Florida Bar Opin¬ I Toledo, OH 43615-1844 ion 88-14 (March 7, 1989), which per¬ mits such communications. THE FLORIDA BAR JOURNAL/JANUARY 1995 7 nition of the mutuality of domestic “Psychological abuse” was stated to have created supervised visitation cen¬ violence would seem either to negate include “blaming” (c.g., blaming the ters. Florida, specifically Jacksonville, the dubious basis for this theory in battered woman in part or in whole should be added to the list. The Junior most instances or, if made available to when violence occurs), p. 26. What if League of Jacksonville along with the men as well, to shield the party having she started the fight, such as by clob¬ Children’s Home Society and the Flor¬ the foresight to strike first. In short, bering her husband with a frying pan? ida Department of Health and the feminist-inspired, legal response There is no stated limitation to par¬ Rehabilitative Services have joined to domestic violence has been to en¬ ticular circumstances. Are we to under¬ forces to open two Family Visitation courage women to kill men, rather stand that, when domestic violence Centers, Inc., for supervised visitations than leave them. occurs, it is itself a form of domestic of dependency cases. The first center Much media coverage of domestic violence to suggest to a woman that opened in January 1993. Currently, violence has been one-sided. The made- she may be partly at fault? approximately 240 visitations per for-TV version of “Men Who Hate It defies common sense that virtue month are held at the centers. Women and the Women Who Love should be allocated by gender. The title Judge Karen Cole of the Fourth Them” broadcast earlier this year, for of the October Journal is “Taking Do¬ Judicial Circuit recently addressed the example, was a dramatic portrayal of mestic Violence Seriously.” The ten¬ Junior League of Jacksonville and malignant men beating loving women. dency to reduce the tragedy of domestic stated the center has assisted the court When a talk show host asked the violence to just another male-bashing in its review of dependency cases by author why she failed to write about issue may be the greatest obstacle to providing a homelike environment for women who hate men, she told the realizing this goal and to finding bal¬ the visitations, increasing the number host to go write his own book. “The anced, workable solutions. of visitations that can occur and pro¬ ‘gender war’ requires a constant flow viding the court with additional infor¬ of horror stories showing women that Frank L. Kubler mation regarding the visits that it male perfidy and female humiliation Miami Lakes normally would not have available. are everywhere.” Who Stole Feminism^, She stated that the supervisors of the p. 28. visits have given tremendous back¬ Just about every domestic violence Florida’s Visitation Center ground support to her ability to review photo in the October Journal shows Judge Lynn Tepper’s article, “The her dependency cases. The Family Visi¬ either a beaten woman or a hand¬ Court’s Role in Ending Family Vio¬ tation Center, Inc., also provides a cuffed man. When violence by a woman lence” (October 1994), discussed the separate program for domestic rela¬ is mentioned at all, it is almost invari¬ creation of visitation centers. She men¬ tions cases. ably characterized as fully justified tioned Massachusetts, Minnesota, Penn¬ At the Third Annual Guardian Ad self-defense by a helpless innocent. sylvania, and Hawaii as states that Litem Conference in October, the Su¬ preme Court and Governor of the State of Florida recognized the Family Visi¬ tation Center, Inc., as the organization of the year for their support and service to the guardian ad litem program. The center also received recognition for dedi¬ cation to the guardian ad litem pro¬ gram and for outstanding service to the court. Florida and The Florida Bar should be proud of this facility and encourage more of them around the state. Nancy B. Barnard Jacksonville Enjoyed Article Glenn H. Weiss’s article “Notes from a Trial Hack at the International Court of Justice” (December 1994) was terri¬ fic. Mr. Weiss conveyed the feel of his adventure and at the same entertained and educated us, his readers and col¬ leagues. I suspect Mr. Weiss’s class at “U of F” is quite popular! Paul Braddock St. Augustine 8 THE FLORIDA BAR JOURNAL/JANUARY 1995