Legal Practitioner Pointers

October 2019

Consumer products fail, often with disastrous results. Catastrophic injuries, limb loss, paralysis, and death are all too common results when dangerous products interact with consumers. For all the reasons why a product might fail, one thing is certain: product cases are different. The product liability practitioner must grapple with several realities at once: Evidence, Expertise, and even the Evolution of law.

EVIDENCE

The need to preserve evidence is legion among product liability trial lawyers. Sometimes, the ability to preserve critical evidence is simply beyond our control. Thankfully, state and federal law provides support to those who seek to protect evidence and punishment for those who seek to destroy it. See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015); James v. U.S. Airways, Inc., 375 F. Supp. 2d 1352 (M.D. Fla. 2005). When litigation is imminent, the party controlling evidence is likely to take on a duty to preserve the same. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) (finding, “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”). The oft-cited “spoliation letter” provides powerful evidence of the latest date the recipient became aware of the duty to preserve.

The usefulness of the spoliation letter is not limited to potential litigants—third parties are often in possession of critical evidence. Third parties may be subject to civil liability for mishandling or destroying evidence. See James, 375 F. Supp. 2d at 1354 (finding, “third party spoliation claims, i.e. claims where the underlying action is against another defendant, are permitted even under this cloud of conflicting authority.”). However, litigants may need to show more than a third party’s “reasonable foreseeability” of the claim in order to trigger an independent cause of action. See Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200, 1206 (Fla. 5th DCA 2019) (declining to find a duty owed by third-party based solely upon foreseeability of litigation). This shows why it is so critical to send spoliation letters to both parties and nonparties alike.

EXPERTISE

Product practices often aim for flexibility over brute force. Nimble practitioners can develop a keen sense for problems and solutions across a wide array devices and technologies. This makes sense, as potentially dangerous products vary wildly in their composition and failure modes. From tires to tractor-trailers, practitioners carry a special burden to become “mini-experts,” studying each industry that permitted a dangerous product to come to market. This includes the close inspection of processes underlying design, materials, testing, production, regulation (or lack thereof), advertising, sales, and more.

This author routinely “goes back to school,” enrolling in survey courses, online education, trade skills training—whatever it takes to better understand the marketplace. Training guides, handbooks, and published materials are consulted regularly in an effort to better understand how a particular product was developed, assembled, and sold. Exemplars (new versions identical to the defective product) are purchased, disassembled, and examined, all in search of answers to key questions. Ultimately, professionals and expert witnesses are essential to a practical and pragmatic determination of the source of a defect.

EVOLUTION

Florida law supports a variety of different claims which may be brought to recover for harms and losses caused by a defective product. Broadly speaking, strict liability and standard negligence claims are most commonly employed in these settings. Within strict product liability specifically, three categories or “families” of claims appear frequently: (1) manufacturing defect, (2) design defect, and (3) failure to warn. See e.g. Force v. Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004). The genesis and development of these categories within Florida law can be traced at least as far back as 1965, to the publication of the American Law Institute’s Restatement (Second) of Torts. See West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 87 (Fla. 1976) (adopting Restatement (Second) of Torts § 402A).

Even with this history, Florida’s strict products liability law is not immutable. As recently as 2012, the Florida Supreme Court lamented the “state of flux” inherent in the standard by which a jury may evaluate product defects. See In re Standard Jury Instructions in Civil Cases--Report No. 09-10 (Prod. Liab.), 91 So. 3d 785, 789 (Fla. 2012) (Pariente, J. concurring). The defect standard continued to mire the uninitiated, both practitioners and Courts alike for years. It was only recently that the Florida Supreme Court put this issue to bed, holding that Plaintiffs are categorically entitled to utilize the Consumer Expectations Test in evaluating claims of product defect. Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015) (holding, “we adhere to the consumer expectations test, as set forth in the Second Restatement, and reject the categorical adoption of the Third Restatement and its reasonable alternative design requirement.”). Even so, the risk/utility test remains unsettled as a means of defense requiring the product practitioner to develop guidance and present argument supporting a jury instruction formulation best suited to the needs of the individual case.

Further complicating matters, Florida’s product liability law also permits so-called “alternative” theories of liability where a Plaintiff might otherwise be unable to identify the manufacturer of the precise product at issue. See Conley v. Boyle Drug Co., 570 So. 2d 275, 281 (Fla. 1990) (adopting the “the market-share alternate liability theory” previously adopted by the Washington Supreme Court). This arises most often when a Plaintiff experiences injury caused by a product that is (or once was) manufactured by more than one company. The market-share alternative liability theory relies on shared “risk contribution” and is appropriate in cases where Plaintiff has not pled certain other, specific theories of liability. See Guarino v. Wyeth, LLC, 719 F.3d 1245, 1252 (11th Cir. 2013). Seasoned practitioners might recognize the idea of risk contribution as being somewhat divergent from Florida’s more traditional treatment of civil procedure, including joint and several liability (abolished except in rare circumstances) and general fault apportionment (pure comparative). See §768.81, Fla. Stat. (2019). However, Conley provides a roadmap with detailed proof requirements, even permitting a rebuttal of the risk contribution finding. See 570 So. 2d at 286.

The product liability practitioner must master these topics and more when navigating defective product litigation. It is at times daunting, but perhaps Theodore Roosevelt said it best, that “nothing in the world is worth having or worth doing unless it means effort, pain, difficulty...”

Nicholas S. Gurney, Esq.
201 S. Orange Avenue, Suite 1500
Orlando, Florida 32801 | 407.648.5977
www.NewsomeLaw.com

-Nicholas Gurney, J.D., Esq.

September 2019

A common misconception in the public, as well as with new attorneys, is that a case begins when a lawsuit is filed.  This notion couldn’t be more incorrect or have more serious implications than in the area of Personal Injury.  The reality is, in most personal injury cases, lawsuits are not filed for months, or even years, from the date of the injury.  This leaves a significant amount of time for a case to grow and blossom or wither and die.  Now it’s true that a case isn’t won in pre-suit, however, it can certainly be lost in pre-suit.  Here are a few pointers on how to avoid the most common pitfalls of pre-suit personal injury:

PRIORS

Prior injuries or accidents can greatly affect the value of a personal injury claim.  It’s important to sit down with the client at the beginning of the case and create a detailed list of any accidents they’ve been involved in, both at-fault and not at-fault.  It’s also a good idea to get a list of all injuries and physicians they’ve treated with for those accidents as well as injuries that were not the result of negligence or the basis of a prior claim.  It’s your job to do the research and find out any factors that may detrimentally affect the value of the case or possibly your decision to take the case.  Priors, in and of themselves do not destroy the viability of a claim, however, they will certainly affect the strategy you take, both in pre-suit and in litigation.

GAPS IN TREATMENT

A client’s treatment history is an integral element in evaluating damages in a personal injury claim.  Sustained and consistent treatment tells a story of a client who’s injured and doing everything possible to get better.  Clients who wait to seek treatment, miss appointments, and end treatment before their doctor’s recommendation, do so at the peril of their injury case.  The “gap in treatment” argument is one of the most common refrains from insurance companies and defense lawyers when speaking to juries.  “If the client was so hurt, why didn’t they go to the doctor?” Although trite and predictable, this is a highly effective tactic and it resonates with jurors.  A call or text from your staff every couple of weeks to confirm the client is treating consistently will go a long way in increasing the value of your case.

EARLY DIAGNOSTIC TESTING (MRI)

Magnetic Resonance Imaging (MRI) is a form of medical diagnostic imaging.  It’s primary application in most personal injury cases is discovering and diagnosing injuries such as disc herniations and disc bulges.  Early diagnostic imaging is a valuable and indispensable form of evidence in showing causation and damages.  Again, insurance adjusters and defense counsel will always make the argument that injuries are pre-existing or unrelated to the case, thus why the testing is so important.  Radiologist who are well trained are able to interpret MRI images and diagnose with some certainty if an injury is contemporaneous or was pre-existing.  If your client and their physicians wait or fail to get an MRI, your job of making a causal connection between accident and injury will be far more difficult, if not impossible.

SOURCES OF COVERAGE

Insurance policies that afford coverage to your client can come from a variety of sources.  It’s important that in the beginning of a case you identify all sources of coverage for your client’s injuries.  Florida Statute 627.4137 requires the disclosure of specific policy information and should be cited in any request that is sent to a carrier.  Here is a brief list of sources of coverage that should be pursued:

  • Your client’s insurance (uninsured motorist, umbrella policies)
  • A resident relative of your client (uninsured motorist)
  • The owner of the vehicle your client was in (bodily injury, uninsured motorist)
  • The defendant driver (bodily injury)
  • The owner of defendant driver’s vehicle (bodily injury)
  • Your client’s employer (if they were in the course and scope of their employment)
  • Home owners insurance (premise liability, dog bite)
  • Commercial liability policies (premise liability, auto accident)
  • Renters insurance (premise liability, auto accident)

As stated above, this list is not exhaustive, however, it should give you some good places to start looking.

EVIDENCE SPOLIATION

Evidence spoliation refers to the destruction or tampering of materials that could potentially become relevant in a court case.  Parties are generally obligated not to destroy any evidence that may potentially become relevant.  Still, it is a good practice to send a certified letter putting the party on notice as to the materials you wish to be preserved.  Every case is unique and therefore the materials that you request to be preserved are unique as well, however, surveillance video, photographs, cell phone data, employment records, and audio recordings are just a few examples of the types of evidence you may want include in your notice letter.  Florida Rule of Civil Procedure 1.380 allows for the court to sanction parties who knew or reasonably should have known the evidence could have been relevant to the foreseeable civil action.  If you reach out to me, I’d be happy to provide you with some examples of some spoliation letters I’ve sent.

RECORDED STATEMENTS

The final pitfall I will discuss can truly torpedo your case.  Insurance adjusters are very clever and will use all of their training to weaken your case.  One of the tried and true methods utilized by the adjuster is the recorded statement.  It’s important to make the distinction between a recorded statement requested by the defendant carrier versus your client’s carrier.  Statements requested by the client’s carrier can often times be mandatory as set out in the terms of their contract with the carrier for their insurance policy.  Refusal to submit to these requested statements, often times referred to as EUO (examinations under oath), can result in a breach of contract and possibly loss of coverage under the policy.  Recorded statements or statements under oath requested by a defendant carrier are not compulsory and I’ve yet to see anything good come from one.  When I receive a request from a defendant carrier for a recorded statement my response is always the same, that I will allow the recorded statement as long as they submit a signed document from insurance company stating that the recorded statement is being taken in lieu of a deposition in any future litigation.  I’ve yet to have a carrier take me up on my offer.  If you find yourself in the unfortunate situation where your client has already given a statement prior to your involvement in the case, request a copy or transcript of the statement citing Florida Statute 92.33 which requires the disclosure.  It’s then up to you to review the statement and assess the damage your client may have done to their case.

The importance of pre-suit and creating a solid foundation for your case can’t be overstated.  The pitfalls are everywhere, tread carefully.

Nick Childress, Esq.
The Orlando Injury Law Firm
www.OrlandoInjury.com
Phone:  (407)680-1600
Email: Nick@OrlandoInjury.com

-Nick Childress, J.D., Esq.

August 2019

Search “proposal for settlement” in any legal research platform, and it will yield hundreds of Florida appellate court orders and more than a thousand briefs. Florida’s proposal for settlement statute and its implementing procedural rule were designed as a means of efficiently settling cases due to the ramifications of an unaccepted proposal. However, the reality of our state’s proposal for settlement scheme is “in sharp contrast to the intended outcome because the statute and rule have seemingly increased litigation as parties dispute the respective validity and enforceability of these offers.” Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 650 (Fla. 2010) (emphasis added) (citing Sec. Prof’ls, Inc. v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997)). In light of all that litigation, the numerous nuances of proposals for settlement are beyond the scope of this article. Suffice it to say this powerful litigation tool comes in handy when used correctly. It’s the “using it correctly” bit that requires diligent research, analysis, and application given the plethora of pitfalls into which an unwary attorney can fall, the most common of which are addressed below.

What exactly is a proposal for settlement?

A proposal for settlement is a fee-shifting mechanism used in civil litigation in which a party offers to pay or demands another party pay a certain amount of money to settle. Proposals for settlement are also called offers of judgment. Proposals must be in writing, must always be served but are rarely (if ever) filed with the court, and should follow the strict format specified by Florida Statute § 768.79 and Florida Rule of Civil Procedure 1.442. The statute and the rule contain several parameters for proposals, such as restrictions on when proposals can be served.

How does a proposal for settlement work?

Let’s say a plaintiff serves a $50,000 proposal on a defendant. The proposal expires unaccepted 30 days later. The case proceeds to trial, and the plaintiff obtains a judgment of at least 25% greater than the proposal (i.e., $62,500 or more). The plaintiff is then entitled to recover her reasonable attorney’s fees from the defendant from the date she served her proposal. Now let’s say the defendant had also served a proposal on the plaintiff. The amount of the defendant’s proposal was $25,000. At trial, the jury returns a verdict that is at least 25% less than the defendant’s proposal (i.e., $18,750 or less). In that instance, the defendant is entitled to recover its reasonable attorney’s fees from the plaintiff, again from the date it served its proposal.

What happens in cases involving more than two parties?

Be very careful when serving a proposal in multi-party litigation. See Pratt v. Weiss, 161 So. 3d 1268 (Fla. 2015) (striking undifferentiated offer from multiple defendants because it failed to apportion the settlement amount to be paid by each defendant); Willis Shaw Express, Inc., etc., et al. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003) (striking joint offer from plaintiffs to a single defendant that did not specify the amount and terms each plaintiff was requesting). Vicarious liability situations excluded (Fla. R. Civ. P. 1.442(c)(4)), here is the rule in its simplest terms:

  • You can make an offer from multiple parties in the same proposal, as long as the proposal is directed to a single recipient and states the amounts attributable to each party.
  • You cannot make an offer to multiple parties in the same proposal under any circumstances.

It is also critical in multi-party litigation that you keep in mind what part(s) of the case will be extinguished by your proposal if it is accepted and what part(s) will remain alive and that you advise your clients accordingly.

I’m in a multi-party situation, and my client and I received a joint proposal from the opposing parties. What verdict must the other side obtain to recover fees from my client in that situation?

Good question. There isn’t much law on this issue at the moment. Generally, however, when a joint proposal is served (multiple defendants making an offer to a single plaintiff, or multiple plaintiffs making a demand from a single defendant – those are the only two options, vicarious liability situations excluded), the party receiving the proposal cannot choose to settle with less than all of the serving parties. However, the serving parties can only recover fees if they all ultimately prevail under the calculation set forth in § 768.79, because the receiving party does not have the ability to consider each offer separately.

As stated in Hoang Dinh Duong v. Ziadie, due to the nature of the “all or nothing” joint proposal served by multiple plaintiffs on a single defendant, “if the verdict for any of the [plaintiffs] was not twenty-five percent higher than the amount of that claim in the settlement proposal, then none of the [plaintiffs] could obtain attorney’s fees under its terms. In other words, it was not enough that the total amount of the verdict exceed the total amount of the offer by twenty-five percent; the individual amounts awarded to each [plaintiff] in the verdict must also exceed the individual amounts set forth in the proposal for settlement for that [plaintiff] by twenty-five percent, or no attorney’s fees could be claimed based upon the proposal for settlement.” 153 So. 3d 354, 360 (Fla. 4th DCA 2014).

My client wants more time to decide whether to accept the other side’s proposal. What are my options?

If your opposing counsel agrees to extend the acceptance period, it’s extended. If counsel does not agree, it gets dicey. Florida appellate courts disagree on whether the court may enlarge the acceptance period over objection, and on whether filing a motion for enlargement of time tolls the acceptance period. That’s why it’s important to notify your client immediately upon receipt of a proposal and the deadline to accept.

Practically speaking, you can always ask the other side whether the amount demanded or offered will informally remain on the table after the acceptance period expires. Just make sure that if you later settle, you include in any settlement agreement a provision stating the settlement resolves all claims, including any attorney’s fees and costs to which the opposing party may be entitled.

The other side included a claim for equitable relief in her complaint/cross-complaint. What should I do with that?

You cannot serve a valid proposal seeking release of all claims when the other side is asserting a claim for legally cognizable monetary and non-monetary relief. See, e.g., Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013); Winter Park Imports, Inc. v. JM Family Enterprises. 66 So. 3d 336 (Fla. 5th DCA 2011); Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, Inc., 22 So. 3d 140 (Fla. 4th DCA 2009). But cf. Faith Freight Forwarding Corp. v. Anias, 206 So. 3d 753 (Fla. 3d DCA 2016) (applying the “real issue” analysis and holding a “passing reference to ‘equitable relief’ in the operative complaint” made the case distinguishable from Diamond Aircraft). The “legally cognizable” part simply means demanding, for example, “a letter of retraction and apology” will not defeat the other side’s ability to serve a valid proposal for settlement. Berman v. Kafka, 2015 WL 12940184 (M.D. Fla. 2015) (non-monetary relief sought by plaintiff was not available as a matter of law). Examples of legally cognizable non-monetary relief you may see are declaratory relief, injunctive relief, and specific performance. Know that you probably will not be able to serve an effective proposal when you see those types of claims in the other side’s pleading.

-Rachel A. O’Brien, J.D., Esq.

July 2019

I have practiced yoga and meditation for over 25 years and have been certified to teach since wrapping up that cold Massachusetts March in 1999 when I spent a month training at Kripalu Center. Given that I have practiced for nearly half my life, yoga and meditation are an integral part of who I am and the practices inform how I view the world. They are what kept me (relatively) sane through law school and law practice.

When I entered the practice of law, I thought I understood what ailed the legal community (and me). I accepted that the way we felt – the stress, depression, intrusive thoughts etc. - were due to working in an intense profession and that good self-care was the simple key to wellness.

It wasn’t until the summer of 2018 that I added a new “lens” through which to view my life and the challenges of our legal community. This was when I began training with Warriors at Ease whose mission is “to increase awareness about the power of yoga and meditation and educate a network of professionals qualified to share evidence-based practices through programs that support the health and healing of service members, veterans, and their families.”1

While I progressed through my education exploring what we term “trauma informed” yoga and meditation instruction, I began wondering if the behavioral and psychological challenges presenting in the legal community were symptomatic of something other than just stress or an imbalance in family/work priorities. Could part of the above-average rates of alcoholism, depression, and suicide be a result of trauma?2 Trauma could be a missing piece of the mental health puzzle and until it’s more widely recognized and treated, I believe the same challenges will continue to plague our lawyer population.

Jeena Cho, co-author of the ABA publication The Anxious Lawyer, says that many lawyers are in the “suffering business.”3 They help people during some of the toughest, heart-breaking times in their lives. Cho says that all too often lawyers believe that being adversely affected by client suffering is due to inadequate lawyering or weakness, when in fact it’s simply part of being human.4

And being exposed to the suffering embodied in the stories and events of another person’s life can lead to what is termed “vicarious trauma” (VT)5. Mental health professionals and authors of Second-Hand Shock: Surviving and Overcoming Vicarious Trauma, Ellie Izzo and Vicki Carpel Miller, advance that any time a person in a helping profession interacts with a person in distress, he or she is at risk for sustaining VT.6

Izzo and Carpel Miller define VT as a “set of cognitive, emotional, physical, and spiritual disturbances that result from helping trauma survivors.”7 According to Tish Vincent, a lawyer and licensed clinical social worker, these “disturbances” can take the form of the same symptoms of Post-traumatic stress disorder (PTSD) that the client carries with them into the law office: intrusive thoughts of the event, distressing dreams, sleep disturbances, angry or irritable outbursts, and hyper-vigilant or self-destructive behaviors.8

It’s important to remember that trauma happens not only in dramatic circumstances like a murder, house fire, or catastrophic injury, but also in every-day tragedies such as divorce, bankruptcy, losing a job, or losing a loved one – the kind of scenarios lawyers often navigate.9 Cho reminds us that VT can be cumulative, with onset occurring after many interactions with traumatized clients or with just one exposure to an intensely traumatized client.10

Vincent advises that vicariously traumatized individuals can often engage in “unhealthy coping mechanisms” including substance abuse.11 These people attempt to escape the effects of trauma by seeking the relief that alcohol and drugs temporarily offer.12 In the words of Izzo and Carpel Miller, “we choose distracting behaviors that inevitably fail us miserably.”13

To make matters worse, helpers tend to “go it alone” and resist the possibility that VT may be the root cause of their challenges.14 They also fail to look at their own personal histories with trauma which may be exacerbating their VT.15

Roderick MacLeish, who was lead counsel on more than 500 clergy sex abuse cases in Boston writes about the effects of his close work with the abuse victims in “A Proposal for Reducing the Risk of Vicarious Trauma for Advocates and Attorneys Representing Victims of Violent Crime.” After his experience of hearing abuse stories and working with victims, he was diagnosed with PTSD and could not practice law for a number of years.
MacLeish had himself experienced sexual abuse as a child and his work with the cases “rekindled unresolved issues.” He notes that although some advocates have themselves experienced trauma, VT can happen to any advocate.19

So, what action can we take? Recognizing the possibility that you might be suffering from VT is the first step. It’s then that you can proceed with getting help.

Tish Vincent tells us that VT and PTSD respond to therapeutic interventions with treatments such as Eye Movement Desensitization and Reprocessing (EMDR), empathic listening, and cognitive behavioral techniques.20

As a supplement to professional treatment, Ellie Izzo and Vicki Carpel Miller crafted the Rapid Advance Process for those suffering from VT.21 The workbook for the 5-step sequence is available in their Second-Hand Shock book cited in this article.22

Jeena Cho recommends meditation as a tool for navigating this challenge in addition to needed therapeutic interventions. And the science supports this suggestion with a key study coming out of Harvard Medical School and Massachusetts General Hospital.23 In this study it was found that meditation supported the thickening of those regions associated with emotional regulation and self-awareness. And regions such as the amygdala, that fight or flight part of the brain that is so often overreactive in those of us who have suffered trauma, got smaller.24

As a result of training to work with traumatized populations, I now build all my classes on practices that evoke the “Relaxation Response” (RR), a mind/body state researched for over 40 years by Dr. Herbert Benson.25 The RR is your unique ability to shift from a fight/flight state to what we call the “rest and digest” state.26 This can be elicited by many different practices including specific breathing practices, a simple one being extending the exhale longer than the inhale and repeating a helpful word on the exhale.27 The RR can be elicited by a myriad of meditative movement practices, so I encourage you to explore what feels right to you.28

These are just some of the many ways to navigate VT. If you think you may be suffering from VT, please know it is no cause for shame and that VT is a normal stress response.29 I wholeheartedly encourage you to seek out the help of a caring therapist who can guide you on your healing path and help you implement helpful practices into your daily self-care regimen.

1Warriors at Ease Home Page (last visited June 24, 2019)
2The Florida Bar Health and Wellness Center Resources, National Lawyer Mental Health Statistics (last visited June 24, 2019)
3Jeena Cho, Suffering can be the human consequence of lawyering, ABA Journal June 1, 2018 (last visited June 24, 2019)
4Id.
5Ellie Izzo & Vicki Carpel Miller, Second-Hand Shock: Surviving and Overcoming Vicarious Trauma 10 (2010).
6Id.
7Id.
8Tish Vincent, Lawyers and Post-Traumatic Stress Disorder, Michigan Bar Journal, 58-59, June 2014 (last visited June 24, 2019)
9Cho, supra note 3.
10Id.
11Vincent, supra note 8 at 58.
12Id.
13Izzo, supra note 5 at 107.
14Id.
15Izzo, supra note 5 at 107
16Roderick MacLeish, A Proposal for Reducing the Risk of Vicarious Trauma for Advocates & Attorneys Representing Victims of Violent Crime 2 (last visited June 24, 2019)
17Id.
18Id.
19Id.
20Vincent, supra note 8 at 59.
21Izzo supra note 5 at 57.
22Id. at 101.
23Britta K. Hölzel et al., Mindfulness practice leads to increases in regional brain gray matter density, Nov. 10, 2010 (last visited June 24, 2019); Brigid Schulte, Harvard neuroscientist: Meditation not only reduces stress, here’s how it changes your brain, The Washington Post, May 26, 2015 (last visited June 24, 2019)
24Id.
25Benson Henry Institute, About Dr. Herbert Benson (last visited June 24, 2019)
26Understanding the stress response, Harvard Health Publishing, Harvard Medical School, March 2011, Updated May 1, 2018
27Video of Dr. Herbert Benson (last visited June 24, 2019).
28Penelope Klein et al., Meditative Movement, Energetic, and Physical Analyses of Three Qigong Exercises: Unification of Eastern and Western Mechanistic Exercise Theory, Sep. 23, 2017 (last visited June 25, 2019); Albert Yeung et al., Effectiveness of the Relaxation Response-Based Group Intervention for Treating Depressed Chinese American Immigrants: A Pilot Study, Sep. 5, 2014 (last visited June 25, 2019); Catherine Woodyard, Exploring the therapeutic effects of yoga and its ability to increase quality of life, July-Dec., 2011 (last visited June 25, 2019).
28 Izzo supra note 5 at 97.

-Kristin Grossman, J.D., LL.M, Esq.

June 2019

These days, practically no one leaves home without a cell phone; readily available technology may tempt one located in Florida to commit a third degree felony without knowing the serious implications of secretly taping a conversation. As most practitioners know, Florida Statutes Section 934.03(1) provides that someone who secretly tapes a face-to-face or telephone conversation without the other party’s consent commits a third degree felony, as does someone who plays the tape knowing that it was illegally made. Florida is more protective of conversational privacy than a majority of states and the federal government that permit taping on the consent of only one party to the conversation.

An illegally-taped conversation is required to be suppressed under Florida Statutes Section 934.06 except in a case in which someone is being prosecuted for illegally taping a protected conversation. Although suppression is a remedy designed to protect one’s privacy, suppression may exclude direct evidence of heinous criminal activity. For example, the Florida Supreme Court found that the trial court should have suppressed a conversation, which the stepdaughter secretly taped, even though the tape supported her allegation that the stepfather had been sexually abusing her for some six years. McDade v. State, 154 So. 3d 292, 294, 300 (Fla. 2014).

Florida Statutes Section 934.02(2) protects a face-to-face conversation (termed an “oral communication”) against secret taping as long as the party taped believes that the conversation is private and that belief is reasonable. A court must consider whether a declared expectation of privacy is reasonable. McDade makes it clear that one has a reasonable expectation of privacy when one is in one’s own bedroom with one other person. McDade v. State, 154 So. 3d at 298. In contrast, an expectation of privacy is not reasonable if one is in the area of a retail store open to the public, especially when there are video surveillance cameras in plain view and posted signage warns of the surveillance. State v. Caraballo, 198 So. 3d 819, 821, 822 (Fla. 2d DCA 2016). In other cases, a court may have difficulty in determining if a suspect’s expectation of privacy is reasonable.

Florida Statutes Section 934.02(1) protects a telephone conversation (termed a “wire communication”) against secret taping. Interestingly enough, there is no requirement that the party being taped believes that the conversation is private nor that that belief is reasonable. Another potential problem with taping a telephone conversation is that it might be unclear in this age of the cell phone where both parties to the conversation are located; it is entirely possible that one party is in a one-party consent state and the other is in a two-party consent state. The determination of which state’s law applies may not be an easy one to make.

Of course, the courts are the ones to interpret how Chapter 934 applies. In McDade, the Florida Supreme Court invited the Florida Legislature to create an exception to Chapter 934 to permit the use of a taped incriminating conversation. 154 So. 3d at 299. In the regular Florida Legislative Session following the McDade decision, Florida Legislature created a very narrow exception in Florida Statutes Section 934.03(2)(j) that tracks the McDade facts. This exception permits someone under eighteen to secretly tape a face-to-face conversation if the minor is a party to the conversation and the conversation and “the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the child.”

Rapid advances in technology may present additional problems for the Florida Legislature. Various news outlets report that a digital personal assistant can tape a conversation, perhaps without the knowledge of the homeowner. In the 2019 Florida Legislative Session, the Florida Legislature attempted to bring the Florida Statutes a little more up-to-date to reflect the widespread use of digital personal assistants in the home. Had the proposed legislation passed, one of the new legislative findings would have included the following language: “Persons should not have to choose between using household technological enhancements and conveniences or preserving the right to privacy in one’s home.” The revision would have made it clear that a conversation taped by a home-based digital personal assistant would fall within the term “oral communication.” This failed proposed legislation leaves open for debate whether, when a digital personal assistant tapes someone in the home, the taped individual retained an expectation of privacy that was reasonable.

The advantage of taping a conversation is that the tape captures the exact words and tone of the person speaking. The ethics of an attorney taping a client has been a topic of discussion following the disclosure that Attorney Cohen allegedly taped conversations with President Trump. The advice to a Florida attorney seeking to tape client meetings to maintain a record of what the attorney and the client discussed would be for the attorney to obtain the client’s advance consent to the taping, preferably in writing. Otherwise, it would seem that taping with less than all party consent would be unethical because it would be illegal.

Obviously, a law enforcement agent investigating a crime would love to have proof of a suspect’s criminal intent in the suspect’s own words. There is an exception built into Florida Statutes Section 934.03(2)(c) that permits someone to secretly tape either a face-to-face or a telephone conversation so long as the taping has been directed by a law enforcement officer and the taping is for the purpose of obtaining evidence of a crime. This exception would permit a private citizen to contact law enforcement in advance with some suspicion that a conversation with a suspect will yield evidence helpful to solving or preventing a crime from occurring.

Three Florida state court cases provide facts that are sufficient to bring this exception into play. The cases show that there must be some type of authorization from a law enforcement agent and there must be some indication that the conversation will provide evidence of a crime. See Tundidor v. State, 221 So.3d 587, 600 (Fla. 2017) (the suspect’s son suggesting that the conversation with the father be taped and the police supplying the equipment and transporting the son to the location of the conversation); Mead v. State, 31 So.3d 881, 882 (Fla. 4th DCA 2010) (an investigator from the State Fire Marshal’s office verbally directing the arson victim to tape any telephone conversation that the victim might have with the suspect); Miller v. State, 411 So.2d 944, 945, 946 (Fla. 4th DCA 1982) (a police officer being present when Baker, the proposed hit-man, taped his telephone conversation with Miller that followed a letter from Miller to Baker in which Miller intimated that he wanted Baker to kill Miller’s wife).

Chapter 934 is not without its problems. On one hand, it attempts to protect an individual’s privacy; however, a private citizen who fails to obtain police involvement in advance of the taping may have committed a third degree felony. In addition, application of the suppression remedy may place the best evidence that a crime was committed off-limits to law enforcement.

-Carol M. Bast, J.D., LL.M., Esq.

May 2019

January 8th, 2018. A first chair jury trial and… My first day of class at UCF.

In jury selection that morning I asked people about their views on the right to remain silent and presumption of innocence. The trial progressed well and we sent the case to the jury just before 5pm, barely enough time for me to make it across town in rush hour.Ten minutes before class starts I am in the classroom ready to go. Moments before class begins I finally take off my jacket, roll up my sleeves and see a text on my phone: NOT GUILTY. Bingo.

Class begins and I start my lesson in almost the same way I started that day: discussing the principles of our American republic.

Whenever I mention teaching to other lawyers I am almost always met with the question “How did you land THAT? I would love to teach.” My answer is almost always the same, “it’s complicated.” Typical lawyer response.

But really though, “how did you get here?” It boils down to three things:

REACH OUT
A few years ago I felt the need for something more than my practice as an Assistant Public Defender so I sent some cold emails to people I had never met, wanting to help the mock trial team at UCF. Emails led to coffee, which was followed by lunches, other meetings, and suddenly a classroom with ten UCF students asking me how to do an opening statement.

This experience began because I took a chance, albeit a small one. I sent an email to someone I had never met about something I was not so sure about. Then I just kept going. A later email led to teaching one, then two, now three classes.

On some level we all fear the nonresponse or even worse, the terse rebuff. If that seems like you, here is my advice: get over it.

People, especially educators, will almost always appreciate your offer for help even if there is not an immediate need. I would have never made it to that classroom on January 8 if I had not emailed a few people and taken that small chance of not hearing back.

At this point I have been to innumerable coffees and lunches just to talk to people and “pick their brains.” Almost every time that’s put me in a better position than before our chats.

While we each chart our own paths, many have been this way before and so many kind people are willing to help you along the way. Your cold emails could lead you to rich mentorship and friendship.

Don’t be afraid to send a nice note to a stranger. You might be opening up a whole new world.

ADD VALUE
Once you reach out, it is time to bring something to the table. At first, it is probably going to be a “loss” in terms of time and money. But, volunteering your time opens doors. Saying yes to a non-paying “job” as a trial team coach moved me from a lawyer to a professor.

Professors, mentors and volunteers invested their time and energy into expanding your knowledge. Your experience and practice are invaluable to a student who has never set foot in a courtroom. What may seem like a mundane story about a routine motion to dismiss might pique a student’s interest and open doors they never knew existed.

The time you spend working with students as a volunteer helps them and can help your practice. Teaching about hearsay and exceptions forced me to understand it precisely and clearly. It also gave me moments of real joy when my knowledge became their knowledge.

The best advice I received from my trial team coaches at UF: “There is no substitute for hard work and preparation.” You have to be willing to prepare, work hard and give it your all if it is going to work.

DO IT FOR THE KIDS
Three years, two competition trophies and many challenges later I am most inspired by the growth of students. What rewards more than plastic trophies is a student growing from a quiet witness to your best attorney over a few months. It is when a student goes from word-vomiting every question to confident, critical cross examinations. It is a moment when you ask why third party candidates struggle to succeed and a student lays out a brilliant, sound analysis.

The thank yous are few and far between and, believe me, I have read more than my fair share of emails that are not “kind.” However we owe it to the next generation of lawyers to make their practice better than we found it. This is through keeping calm with sometimes angsty undergraduates and being honest with our peers. Displaying honesty, fairness and integrity will set you apart from those who seek financial or other edification.

Your drive for the students will drive the students. The good ones will move heaven and earth if you tell them they can. Every time I stand in front of the class I remind myself that my role is that of a conduit, not a fount.

WHAT’S NEXT
Today I consider myself a part-time lawyer and a mostly full-time teacher. The journey that began several years ago is taking an exciting turn in the fall of 2019 as I pursue a PhD. at the University of Georgia. Every experience, from the first cold email to that thrilling January day has led me here.

If you want to share what’s been given with you, do not wait, reach out and being your journey. Franklin Delano Roosevelt said: “Take a method and try it. If it fails, admit it frankly, and try another. But by all means, try something.” Send that first email, give your time and, above all, do it for the kids.

-Matthew Baker, J.D., Esq.

April 2019
Many clients, in criminal cases, choose to exercise their right to remain silent at trial. For them, one of the benefits of not testifying is the jury will not learn of their prior convictions. However, defense counsel may inadvertently open the door to the admission of these convictions even without calling the client to the stand. Your strategy and preparation are essential to avoiding “opening the door” to your client’s record at trial. This strategy begins long before trial and requires the resolve to carry the argument through closing arguments.

Florida Statute §90.806(1) provides: “When a hearsay statement has been admitted into evidence, credibility of the declarant may be attacked, and if attacked, may be supported by any evidence that would be permissible for those purposes if the declarant had testified as a witness.” This permits the introduction of a defendant’s prior convictions when the defendant elicits his or her own exculpatory hearsay statement through another witness at trial.

The first step in addressing this issue is determining whether the defendant has made an exculpatory hearsay statement. Note, the threshold inquiry is not whether the statements are exculpatory, but whether they are hearsay. If the statement is not hearsay, the credibility of the declarant is not an issue. If credibility is not at issue, the defendant’s credibility cannot be attacked, and the defendant cannot be impeached with his or her prior record. In Gudmestad v. State, 209 So. 3d 602 (Fla. 2d DCA 2016) the defendant’s statements elicited by the defense were not offered to prove the truth of the matter asserted and therefore were not hearsay. The Second DCA found the lower court’s admission of prior convictions to be harmful error when used to attack the defendant’s credibility.

When a State witness testifies to hearsay statements of the defendant this does not open the door to admission of the defendant’s prior convictions. Rather, defense counsel may cross examine the State witness about other relevant statements made during that conversation without opening the door. In Foster v. State, 182 So. 3d 3 (Fla. 2d DCA 2015) the Second DCA held once the State presented a portion of Foster’s statement, Foster was entitled to have the jury hear the remainder of his statement without fear of placing his credibility at issue. The lower court erred in finding defense counsel’s cross examination opened the door to impeachment by prior convictions. The Second DCA reversed the conviction because the case turned on the credibility of the defendant. The court also found the jury’s knowledge of the defendant’s prior convictions could have contributed to the verdict. As a result of the case turning on Foster’s credibility, it could not be said beyond a reasonable doubt allowing the jury to learn of his prior criminal record did not contribute to the verdict. The conviction was therefore reversed.

The State also cannot engineer a cross examination of a defense witness to later lead to admission of the defendant’s convictions. In Huggins v. State, 889 So. 2d 743 (Fla. 2004), the State elicited an exculpatory hearsay statement of Mr. Huggins on cross examination of a defense witness. At the close of the defense case, the State requested the court take judicial notice of the defendant’s nine (9) prior felony convictions. The State also requested the court instruct the jury they could consider the convictions in assessing Huggins’ credibility. The trial court reasoned that the defense initially put on testimony from the witness attributing a hearsay statement to Huggins. The State objected to the statement coming in on hearsay grounds, the court sustained the objection, and defense counsel then indirectly elicited the same information by asking if the witness had knowledge of the hearsay statement. On cross examination the State asked, “So your answer to counsel’s question was based on what Mr. Huggins told you?” The court found the State’s question was designed to reveal the implication placed before the jury by the defense. Huggins had therefore opened the door to his own impeachment. The defense argued the defendant’s nine (9) felony convictions should have been excluded because the probative value was outweighed by the unfair prejudice. The court overruled that objection and informed the jury of the fact the defendant had nine prior felony convictions. However, in an effort to limit the danger of unfair prejudice the court did not inform the jury of the nature of the crimes and gave a limiting instruction regarding the jury’s use of the information. The Florida Supreme Court affirmed because the statement was elicited by the defense, not by the State.

Additionally, courts cannot admit unredacted certified copies of the defendant’s prior convictions when a defendant elects not to testify. In Mathis v. State, 135 So. 2d 484 (Fla. 2d DCA 2014), the appellate court found error in the admission of certified copies of the prior convictions. First, the defense had elicited testimony from a law enforcement officer that Mr. Mathis, in speaking with the officer, made no admissions. While the defense had opened the door to impeachment the court was found to have abused its discretion by admitting certified copies of the judgments and sentences. Had the defendant taken the stand the State would have been limited to asking of the existence and number of priors. Only if the defendant answered untruthfully would any of the details of the priors be admissible. Second, the court did not wait to find out if Mr. Mathis was going to testify. Finally, the court’s failure to give a limiting instruction also prejudiced the defense.

Defense counsel may learn of exculpatory hearsay statements when questioning witnesses at deposition. It may require filing a Brady1 or Giglio2 motion to obtain a court order requiring the State to provide said statements. There are a number of questions the defense should answer to prepare to address this issue: who were the statements made to; who else was present; will the statements be elicited on cross examination of a state witness, and will a defense witness be testifying to the statements? If a defense witness will be testifying to the statements, the witness’ name and address must be provided to the State in discovery. Defense counsel must know about all of the client’s prior convictions. The State, under the rules of discovery, has the obligation to give notice of prior convictions, and the State must provide certified copies of the judgments and sentences if they intend to use the convictions at trial.

Be prepared to object to the judgments and sentences being admitted and sent back to the jury. The initial argument to be made to the court is the statements are not hearsay. Should the court overrule that objection, object on the grounds that the prejudicial value outweighs the probative value. Ask that the Court defer ruling on the State’s request to admit your client’s prior convictions until the defendant decides whether to take the stand or not. Until your client makes that pivotal decision the court should not admit the prior convictions. The Defendant may choose to testify and render the issue moot. Be prepared to provide the Court with a proposed instruction informing the jury of the prior convictions and prepare a limiting instruction on the purpose of this evidence for the Court to read. In addition, you may want to ask for a special jury instruction to be included in the instructions for deliberations. Do not forget to address this issue in closing argument because prior convictions must not be considered proof of guilt.

In conclusion, it is important for the defense to make a strategic decision about opening the door to a client’s prior convictions coming into evidence. First, determine whether your client made any exculpatory hearsay statements. Second, know whether your client has any prior convictions. If the State may argue for the admission of prior convictions know what objections should be made. Be familiar with the proper procedure for the court to admit the convictions. Without proper preparation and zealous advocacy your client’s record could make or break a victory at trial.

1Brady v. Maryland, 373 U.S. 83 (1963)
2Giglio v. United States, 405 U.S. 150 (1972)

-Patricia A. Cashman, J.D., Esq.

March 2019
We all know that going through the divorce process is not easy or enjoyable. Divorces tend to create family discord and cause issues for children and those within the family nucleus.

When a divorce is imminent, the anxiety and stress affecting your client can make it difficult for you to do your job. The emotional aspects of litigation are just as important as the tactical approach you decide to use in Court to justify your client's position. Typically, a divorce is pursued so that both sides feel that they had an equitable result, that sentiment is not always shared by the parties involved. That leads to feelings of culpability, psychological detriment, and remorse. As a practitioner, it is beneficial to provide clients with a road map of the divorce process. This will help reduce the turmoil involved with filing dissolution of marriage.

Even when a divorce is done by mutual agreement, parties may still harbor emotional scars and ill will towards the other party. For many, happiness fades and it seems almost impossible to rediscover. However, like countless circumstances in life, with the right tools your client's will be able to find a renewed sense of freedom and move on with their lives.

That's why, as an attorney, it is helpful to give the client's positive affirmations and words of encouragement. Not every client will appreciate this exercise, but for the right client, these words will speak volumes.

  1. Divorce is not the end! It is the beginning of a new life with different circumstances involving emotional, physical and environmental adaptations. Fear can certainly cripple your client under these trying times, but embolden them not to let fear win. Tell them to look at this as an opportunity to draw new goals, erase the past and make new memories.
  2. Feelings and emotions after a divorce are similar to a seesaw. The ebb and flow of emotions linger for quite some time. However, tell them not to forget who controls their feelings. Help them recognize when they are being manipulated so that they are able to stop this vicious cycle. If your client feels as if they are unable to control their feelings, ask them to seek professional help. Counseling can aid them to shed the past and instill new skills for tackling the future.
  3. Now that your client's new life has begun. Help them map out new goals and dreams for themselves and their family. I like to think of it as creating a new bucket list. Remind them that they can now do activities with their children they've always wanted to do, but never had the opportunity to.
  4. There is a saying that: "One nail, can remove another nail," Tell your client's not to be in a hurry to find another partner. Remind them to keep calm and focus on having a peaceful mind and heart. Your client's need time for themselves, they also need space to reflect, heal and to assimilate what just happened. Generally, it is always exciting to have a new romance, but that can quickly wear off. If your client takes time to focus on self-healing, they will ultimately be a better partner, friend, and parent. Practice visual imagery with them. Remind your client what it feels like to get your hair done, buy a new outfit, or get a new car. Use those warm and fuzzy feelings to help them envision a lifetime of happiness. For your client, it may seem impossible when they are in the crux of this pain, but remind them that there is light at the end of the tunnel.
  5. There is no doubt that the process of divorce is painful for your client. However, they should understand that divorce has a beginning and an end. Once it is over, convey to them to try not to feel guilty. It will be challenging for your client to reject feelings of culpability. Reminding them that the future has yet to be written may help with some of these negative associations.
  6. Remind your client to keep their mind, their body and their soul brimming with activity. They can volunteer, rekindle old friendships, or get a massage. The list of opportunities goes on and on, but ideally, as their lawyer you are able to help them see life from a different perspective.
  7. A client needs time to recover, but that endeavor depends on the person and their circumstances. It is impossible to give a client a finite number of years or months that it will take for them to heal. Every person and situation is different, so what works for you, may not work for them. It may take them a few months; it may take them a few years. Pertinently, they should keep their expectations low, and not anticipate that they will have overnight results. Rome was not built in a day, and neither will their new life. Clients may need to take baby steps towards this fresh vision and engage in opportunities that will move them closer to their goals at a turtle's pace.
  8. As a practitioner, it can be easy to forget what our clients are experiencing because of the routine of the job. We have to remind ourselves that not only are they seeking legal advice, but some client also needs a compassionate advocate. Some visual awareness exercises may help them develop more positive outlooks during the divorce process. Some clients may have difficulty sleeping perhaps they can try meditating before bed or thinking of something positive in their lives: an experience that they enjoyed with someone (who is not their ex); something that they liked in the past; something that they enjoy with their children, etc. They can try to do similar exercises in the morning.
  9. What may seem like common sense to a Divorce Attorney is all too muddled for our client's eyes. They may need simple reminders to avoid going to places or seeing people that elicit negative feelings from their past. If they continue to put salt in their wounds, they may not close or heal properly. The same advice applies to social media, encourage them to stay off social media, stop looking at their ex's profile or checking out their Instagram or Twitter posts. Perhaps ask them to take a social media break or block offending contacts from their profiles while the case is pending. If they have children, consider having them use parenting apps such as Two Houses or Talking Parents to communicate instead of texting or calling.
  10. Encourage them to look for new activities and relationships that are part of their newfangled life. Surround themselves with individuals that lift them up and support their efforts to redefine their individuality. Give them the tools to embrace change, and resist the temptation to fall into old habits.
  11. Provide guidance about avoiding drastic changes while their case is pending. Remind them that their emotions are still fragile and they may want to think before they act.
  12. Finally: encourage them to lean on friends and seek only those who can listen with understanding and patience; respect their opinions and emotions and support their sincerity and heart. Feeling isolated may have devastating consequences for your clients. Knowing that they are not alone in this endeavor and that you empathize with their position may lead to a more positive resolution in your cases.

-Irene Pons, J.D, Esq.

February 2019
It is well settled precedent that in criminal trials an accused’s prior criminal history has limited value.  In fact, for years, the type of inquiry regarding this topic has been limited to three questions:  Have you ever been convicted of a felony?  Have you ever been convicted of a crime involving dishonesty or untruthfulness?  And if the answer to either of these questions is yes, then how many times have you been convicted of these crimes?  These questions were rarely even reached unless the Defendant took the stand.  Yet, despite Florida’s constantly evolving self-defense statute, it was always thought that going beyond these three questions was taboo.  However, this belief has recently been called into question under Florida’s Stand Your Ground law.

As most practitioners know under Florida Statutes Sections 776.012 and 776.013, Florida retreated from the Castle Doctrine in favor of a less restrictive standard.  Under Stand Your Ground, there are two scenarios where an individual is justified in the use of deadly force.  The first is if the person reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to himself or herself, or another, or to prevent the imminent commission of a forcible felony.  See Fla. Stat. Sect. 776.012 (2018).  The second circumstance is where the person acts under and with a reasonable belief as to the necessity of force in the context of dwellings, residences, or vehicles.  See Fla. Stat. Sect. 776.013 (2018).  In both cases, it is no longer necessary for the individual to be within the confines of his or her home nor is there any duty to retreat.  See Fla. Stat. Sect. 776.012(2) (2018).

Yet at the core of the Stand Your Ground defense is the belief that the person invoking the defense is not engaged in any illegal activity.  Indeed, evidence of illegal activity on the part of the accused can be entered into the record to negate the protection of Stand Your Ground forcing a trial on the merits.  Of course, this begs the question when presented with a client who possesses a criminal background, more specifically a convicted felon, is he or she prevented from raising stand your ground at all without the fact finder hearing something about a prior criminal history when a firearm is involved?  For a convicted felon to stand his ground with a gun doesn’t it require the commission of the crime of possession of a firearm by a convicted felon?

The defense attorney in this scenario is stuck in a metaphoric Catch-22.  Should she avail herself of this defense to help her client or will the mere knowledge that the individual is committing the crime of possession of a firearm by a convicted felon result in an unintended and unfavorable outcome?

Florida Statute Section 790.23 states in relevant part that it is unlawful for an individual to possess “any firearm” if they are a convicted felon.  Id.  Of further concern is that in many jurisdictions in Florida there is no exception to this crime for convicted felons acting in self-defense.  For instance, in Coleman v. State, the Fourth District Court of Appeal clearly ruled that under no circumstance should a convicted felon possess a firearm.  See Coleman v. State, 345 So.2d 1093, 1093 (Fla 4th DCA 1977).  Relying upon a decision out of the First District, the court held, “self-defense is not a viable defense to the offense of possession of a firearm by a convicted felon.”  Id. and see Dardy v. State, 324 So.2d 178, 178 (Fla 1st DCA 1975).

However, the First District later retreated slightly from Dardy in the case of Munigin v. StateSee Mungin v. State, 458 So.2d 293, 295 (Fla 1st DCA 1984).  There a trial court erred in excluding testimony of self-defense by a DOC inmate who had picked up a knife in a prisoner scuffle where he was not the aggressor.  See id.  Yet the Munigan case seemed to focus on a defendant’s time to reflect on his possession of a weapon more than on whether the action was necessitated by self-protection from harm.   See id.

The Third District Court of Appeal for Florida also seemed to veer marginally away from an all-out ban on convicted felons asserting self-defense claims through the case of Marrero v. State, 516 So.2d 1052, 1056 (3rd DCA 1987).  Here a convicted felon accidently shot a would be attacker after the firearm was wrestled from the aggressor.  See id. at 1053.  While there was a discrepancy between the defendant’s testimony and law enforcement’s recount of the events, the trial court failed to properly instruct the jury on self-defense.  See id. at 1054.  The issue focused again on time for self-reflection.  See id. at 1056.  Specifically, the DCA concluded that a jury could have found from the facts that enough time had passed between the necessity of protecting himself from his attacker and Marrero’s interaction with law enforcement.  See id. Nonetheless he was still entitled to a proper jury instruction requesting that the fact finder specifically determine he could have recognized the consequences of his continued possession.  See id.  “While Mungin does not expressly announce that the defendant's cognitive appreciation of the consequences of his possession is to be part of the required necessity instruction, we have no difficulty in concluding that the jury must be instructed that where the defendant retains the weapon after the necessity ends, he may not be convicted unless the jury finds that he continued to possess the weapon after he had sufficient time to reflect on the consequences of his possession.” Id.

Yet despite the Third DCA’s seemingly pro defense ruling in the previous cases, in 2012 this court ventured clearly into unchartered territory with its ruling in the Darling case. See Darling v. State, 81 So.3d 574, 579 (3rd DCA 2012).  Here the appeals court reviewed whether a trial court erred when it permitted evidence into the record that the defendant was a convicted felon.  See id.  The basis for the admission was the defendant’s assertion of a Stand Your Ground defense.  See id. at 576.  The court’s rationale focused on the language in the statute about a person not being “engaged in an unlawful activity.” Id. at 577.  Since the defendant was a convicted felon, he committed the crime of possession of a firearm by a convicted felon when he tried to stand his ground against his attacker with a gun.  See id. at 579.  This would be an “unlawful activity” under the statute and as such, the jury needed to know these facts to determine that Stand Your Ground was not a viable defense.  See id.  The trial court permitted the jury to know the defendant was a convicted felon because the door had been opened simply by asserting Stand Your Ground.  See id.

Therefore, moving forward, practitioners should be wary in raising Stand Your Ground when representing convicted felons who protected themselves with firearms.  A question exists if such a defense practically even exists for this population after the Darling ruling.  While the Florida Supreme Court has yet to weigh in, recognizing that this pitfall is out there will enable defense attorneys to ensure they are providing competent, legal representation.

-Marc Consalo, J.D., LL.M., Esq.