“It’s the most wonderful

time of the year.”

Songwriters Eddie Pola and

George Wyle.

“A Century of Service to Miami-Dade County”

Programs and Services That Help You GROW Your Practice, GAIN Experience & GIVE Back

BULLETIN

DECEMBER 2018

IN THIS ISSUE:Mindfulness, Self-Compassion, and the Hollow DaysPages 2

Young Lawyers Section Hosts a Spooktacular Halloween Party at Lotus HouseA Silver Tsunami? Planning for the Retirement of Baby Boomer EntrepreneursPage 3

Affordable Housing The Constitutional CornerPage 4

Implications of Withdrawing an Already Deposed Expert Wills on WheelsPage 5

Patently ImpossiblePage 6

Jack of All Trades, Master of None:Why Your Estate Planning Attorney Should not be Your Probate Attorney Page 7

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Our weather is beautiful, the holiday lights illuminate the night and holiday cheer is everywhere. I love this time of year as it brings us together for meeting with friends and holiday parties. Over the next couple of weeks, the DCBA is joining in the celebrating mood and hope you join us for a few of our events.

In December, we will celebrate the holidays with our friends and colleagues. The DCBA and many of the other Voluntary Bar Associations are joining forces to have a great night and support children in need. Our Joint Holiday Party will take place on December 13th. We look forward to a wonderful evening. Please remember to bring gifts to make the holiday special for children in our community.

As 2019 nears, your Bar is working on several noteworthy events. We will start the year with a January General Membership lunch with our Judicial Nominating Commissions. In February, we will hold our Annual Mock Trial with students in our community.

On April 5, 2019, the DCBA will be hosting our Annual Bench and Bar Conference at the Hyatt. It is guaranteed to have something for everyone. This year our theme is Diversity and Inclusion. We have developed a great program and we look forward to your participation during this full day affair. We are finalizing panels on a variety of topics and expect a day of thought-provoking education and dialogue for everyone from students to experienced practitioners. Additional details and the links to purchase tickets for these and other great events will be coming out shortly in my weekly e-newsletter.

I hope you are able to enjoy the holidays, our weather and your loved ones. I wish you and your family a happy, health holiday season filled with only the best.

Best,

Stephanie L. Carman

Stephanie Carman102nd President of

the Dade County Bar

PRESIDENT’S MESSAGE

2 DCBA BULLETIN | DECEMBER 2018

DADE COUNTY BAR ASSOCIATIONBoard of Directors 2018-2019

OFFICERSSTEPHANIE L. CARMAN, President*

GILBERT K. SQUIRES, President-Elect*JANE MUIR, Vice President*

SABRINA PUGLISI, Secretary*ERIC HOCKMAN, Treasurer*

JACQUELINE KIVIAT, Executive Director

JOHNNIE M. RIDGELY, Executive Director (1965-2006)

GROUP ONELATOYA BROWN

NICOLE REIDJULIAN JACKSON-FANNIN

MELISSA JORDANSAMAH ABUKHODEIR

ANASTASIOS KAMOUTSAS

GROUP TWOSTELLA CHU

NATALIE RICOSTUART WEISSMAN

STEPHANIE GROSMANJACQUELINE LEDON

JAIME VINING

GROUP THREEPATRICK MONTOYAZACHARY JAMES

MIRANDA LUNDEEN SOTOALICE SUMIRENE ORIA

EVELINA LIBHEN

GROUP FOURTHOMAS SANTOROBRADLEY TRUSHIN

JACQUELINE ARANGOJEFF P. CYNAMON

JULIE HARRIS NELSONLORI SOCHIN

GROUP FIVERICHARD LESLIESCOTT L. BAENA

STANFORD BLAKEDAVID ROGERO

NEIL ROBERTSONPATRICIA REDMOND

RICHARD LESLIE, ABA Delegate

DADE COUNTY BAR ASSOCIATIONYOUNG LAYWERS SECTION

BOARD OF DIRECTORS 2018-2019

OFFICERSEVIAN L. WHITE DE LEON, PRESIDENTISABELLA POSCHL, PRESIDENT-ELECT

KRISTEN CORPION, SECRETARYSCOTT MERL, TREASURER

2018-2019 DIRECTORSMICHAEL T. DAVIS

RACHAEL MITCHELL FAGENSONAMBER KORNREICHDANIEL ROWINSKYRICHARD D. SHANE

JIHAN SOLIMAN

2018-2020 DIRECTORSMARIANNE CURTIS

TIFFANY-ASHLEY DISNEYDARYL GREENBERG

MICHAEL LEVINERODRIGO PALOMINO

NIKKI RIGLJUSTIN STIVERS

BULLETIN COMMITTEEKATHERINE MASTRUCCI, CO-CHAIR

MIHAI VRASMASU, CO-CHAIR123 NW FIRST AVENUE #214

MIAMI, FLORIDA 33128305-371-2220

EX – OFFICIOSOOKIE WILLIAMS

Mindfulness, Self-Compassion, and the Hollow Days

The holiday season has arrived. A time to immerse in family, friends, giving, gratitude, and perhaps getting a little break from it all. And with the

new year around the corner, resolutions abound and the hope for a fresh start, recharging, and realizing a little more of our potential. For some of us it may involve spending more time with family or friends, making a significant life change, working with greater focus and engagement, eating healthier, exercising more regularly, expressing kindness and gratitude—the list goes on—all pointing us in the direction of experiencing a greater sense of contentment and ease as we go about living a life that matters and with integrity. So, too, the holidays create a little space for reflection.

As we pause to reflect on our lives, we open ourselves to a constellation of feelings, pleasant and unpleasant. For as joyful as the seasons can be, they are also a time that can generate feelings of sadness—gift-wrapped in regret, loss, hurt, loneliness, and a melancholy that surfaces from time to time. I write gift-wrapped, notwithstanding that some of these feelings may be unpleasant, as a reminder that living a mindful life invites us to open to the moments of sadness in a skillful way that may offer us insights and experiences that are affirming and clarifying, and may even liberate us from a cycle of turning away from the past or retreating from thoughts about the future because of something unsettling. As the poet Rumi reminds us:

Some momentary awareness comes as an unexpected visitor

Welcome and embrace them allHe may be clearing you out for a

new delight

Below are a few short practices that you may find helpful to meaningfully embrace moments of sadness and touch their transformative potential. These practices, which draw upon mindfulness, self-compassion, and gratitude, are not designed to turn us away from sadness, but rather to relate to them in a different way, resting perhaps a bit more at ease in the midst of the sadness. They are also practices that can be done anytime, and may help buoy our emotional state by establishing a steadier mental and emotional foundation upon which to experience moments of sadness. As you look over these practices, see if one resonates with you more than the others and give it a try. It can be helpful to bring it into your day as a regular practice.

Three Minute Breathing Space This short exercise is easy to learn, and can be practiced just about anytime and anywhere. It was developed by Zendal Segal and his colleagues, and is one of the most popular practices found in the 8-week Mindfulness-Based Cognitive Therapy program. Each of the below steps is practiced for about a minute.

1. Attend to what is. Close or lower your eyes and direct your attention to your experience—internal and external—noting it, but without the need to change what is being observed.

2. Focus on the breath. Narrow the field of attention and focus on the sensations of the breath flowing through the body. Should you notice your mind wander, redirect attention to the breath.

3. Attend to the body. Expand the field of attention to include the body as a whole and any sensations that are present. At the close of the three minutes, open your eyes and sit for a few moments taking in your experience.

Self-Compassion Break This practice, developed by Drs. Kristin Neff and Chris Germer, leaders in the area of self-compassion, invites you to say three things to yourself, letting the words really sink in: (1) “This is a moment of struggle,” (2) “Struggles like this are a part of living. I am not alone,” and (3) “May I be kind to myself. May I give myself what I need.” These three phrases correspond to the three components of self-compassion: mindfulness, common humanity, and self-kindness.

Gratitude Practice In practicing gratitude, we acknowledge the goodness in our lives, often helping us connect to something larger than ourselves as individuals — whether to other people, nature, or a higher power. In positive psychology research, gratitude helps people feel more positive emotions. One short practice that can be done anytime is to think about someone who has done something nice for you, and mentally thank them. Another is to look around you and identify something for which you are grateful—like a cup of coffee, or your hands. A more formal practice—that can be done each night before bed--involves writing down three things that happened during the day for which you are grateful.

Drop the Story, Feel the Energy Judge Chris McAliley shares this mindfulness practice she learned from Pema Chodron. Often sadness and other

uncomfortable states arise along with thoughts in the mind that—without our realizing it—are weaving a woeful story. As these stories build, we can become increasingly agitated, and experience a building of energy in the body. These body sensations can be unpleasant and fuel our story telling. The practice involves shifting attention from the thoughts that are arising to the sensations arising (and changing) in the body—resting attention there for a few minutes, as you breathe.

Mindful Movement Sadness can be accompanied by a drop in energy and motivation. You may find it helpful to engage in a gentle movement practice that gets the body moving and the breath flowing without calling upon a lot of energy. This can be combined with going outside, which can also help lift the mood. You can stand and stretch, practice gentle yoga postures, or explore a variety of mindful movement practice.

So that you can be guided visit http://bit.ly/dcbabulletin to find audio and video links guiding this practice, as well as links to articles exploring it more fully.

While mindfulness can be helpful for working with difficult emotions, it is but a complement to other methods, especially when we are feeling depressed. Sadness, in itself, is an emotional state that we all experience throughout life; it is a feeling that comes and goes. There are times that feeling sad can signal a depression for which it is important to take good care of ourselves by seeking help from mental health experts, sharing with people how we are feeling, and considering the good advice we receive from those we trust. The Florida Bar has made available a variety of resources to support attorney health and wellness, and there are hotlines that you can call for support as well.

This season, you may experience the holidays and the hollow days. Both are embedded in the fabric of what it means to be a human being and live a human life. On those occasions when you feel an emptiness, a sadness, a loneliness, expand the field of your awareness, and of possibilities, to embrace the moment as it is, and explore the beauty that resides in the gift of being alive. Wishing you a joyful and meaningful holiday season and a Happy New Year.

Scott Rogers is founder and director of the University of Miami School of Law’s Mindfulness in Law Program, and the University’s Mindfulness Research and Training Initiative. He is a nationally regarded expert on mindfulness and has been sharing mindfulness with members of the legal profession since 1992. Scott can be reached at srogers@law.miami.edu.

BY SCOTT ROGERS

www.dadecountybar.org 3

Young Lawyers Section Hosts a Spooktacular Halloween Party at Lotus HouseBY EVIAN WHITE DE LEONAND RACHAEL MITCHELL FAGENSON

One of the core values of the YLS Board of Directors is making sure that we give back to our community – both the legal community and our fellow residents of Miami-Dade County. Rachael Mitchell Fagenson, a YLS Director, spearheaded a Halloween party for the 400+ women and children who are guests at Lotus House: an

organization dedicated to improving the lives of youth, children, and women experiencing homelessness from a trauma-informed lens.

Leading up to the event, Rachael collected over 80 costumes. Foreman Friedman, P.A. graciously donated canvas tote bags for trick-or-treating and other goodies, and local restauranteur, Danny Serfer (of Mignonette and Blue Collar) generously donated dinner. Over 200 children went trick-or-treating in their costumes, got their faces painted, played games, and decorated cookies.

Rachael said, “I have always felt a strong sense of responsibility to give back to the community I live in. I took a tour of Lotus House after they opened their new site this year with the intention of volunteering with the organization. I absolutely fell in love with their mission and work. Lotus House provides women and children who have experienced horrific traumas not only a sense of a normal life, but also work-training programs, counseling, educational programs, child care, and housing in order to be resilient after their stay with Lotus House ends.”

If you haven’t met Rachael, you should. She’s a partner at Foreman Friedman, P.A., where she handles a wide variety of maritime claims in state and federal court, as well as in arbitration, including claims involving personal injury and wrongful death, sexual assault, products liability, and medical negligence. Her practice primarily focuses on the representation of cruise lines, vessel owners, cargo lines, tour operators and other entities in the hospitality, shipping and tourism industries. Originally from Rochester, New York, she completed her undergraduate studies at Pepperdine University in Malibu, California and received her Juris Doctorate from the University of Miami School of Law.

Evian White De Leon, is Program & Policy Director at Miami Homes For All, Inc.

A Silver Tsunami? Planning for the Retirement of Baby Boomer EntrepreneursBY ROBERT HIGHBAUGH AND JANE MUIR

Twelve million small businesses in the United States are owned by Baby Boomers, at or near retirement age. They naturally think of selling their businesses. Beginning in 2010, experts anticipated more than 200,000 businesses worth an average of

$15 million to be placed for sale annually, and for $10 trillion in assets to pass to the next generation, creating the largest transfer of wealth in our history: a Silver Tsunami.

This prediction has not exactly panned out. Why? Studies have proven that eight out of ten of these businesses are unsellable.

Owner and Business Are Inseparable The most common reason for a business to be unsellable is that the business owner is the lynch pin. Without the presence of the owner, the business will fail. Owners may be able to step away for brief periods of time, for vacation or illness, but a lengthy absence would cripple the business. These owners don’t own a company; they own a job.

Nepotism A similar issue arises when family members occupy top management positions. These relatives often lack

significant qualifications, and acquired their positions only because of their relation to the owners. If the business is placed for sale, buyers will not be interested in retaining nepotism-hires. Even if the relative is well-qualified, there would be no guarantee to the buyer that they would remain without the relationship.

Lack of Diversification Another undesirable scenario for buyers occurs when a business has few customers, maybe only one. A company that only serves one customer is at risk of losing its income stream at any moment. If the relationship survives due to the owner’s presence, a change might eliminate the revenue altogether. This creates a high-risk scenario for the buyer.

Valuation High expectations for business valuation can also impede sale of a business. Some owners assign a value to their businesses based on their own needs, hoping to maintain their lifestyle by investing the proceeds of the sale. If a realistic sale price will not replace the income the owner is accustomed to, it will doubtlessly hinder their prospects to close a sale.

How can Boomer entrepreneurs find freedom and profit?

Exit Strategy It can be hard for the type-A personality to relinquish control and make the transition away from active management to passive ownership. Even so, the most important thing in order to enable retirement is to replace the entrepreneur with an independent management team. After an initial

training period, entrepreneurs must choose to reduce personal involvement in the operations of the business, with the ultimate goal of phasing themselves out altogether.

Marketing In order to seek a broader and more diverse clientele, businesses often require marketing adjustments to shift away from being focused on the personality and relationships of their owners and toward the unique character or quality of the goods or services offered.

Due Diligence Unless the entrepreneur is meticulous, there may be some legal and accounting hurdles to overcome in order to prepare a company for the process of due diligence so that buyers can satisfy their need for documentation of the company’s value. Oftentimes entrepreneurs are not even aware that they have cut corners on regulatory, accounting, or tax issues. Since Florida does not recognize an accountant-client privilege, it is wise to hire an attorney first. If the attorney retains an accountant, then attorney-client privilege protects the business while it is correcting any errors and establishing business and operational fundamentals. The same work that enables preparation for due diligence will enable the placement of professional management and staff.

Tax and Estate Planning Aside from legal issues affecting operations, owners need to be conscious of the tax and estate planning consequences of selling or transitioning to passive ownership.

The YLS and guests at Lotus House enjoying the Halloween party

Involving an estate planning attorney about financial planner can minimize conflicts among family members about capital gains and estate taxes.

Making these changes can be so effective that the retiring owner decides not to sell the business at all. Consider William Randolph Hearst, one of the most famous business tycoons in American history. He recognized that none of his five sons would have the capacity to maintain the strength of the Hearst Corporation alone. With his estate planning attorneys, he created a plan that reserved a minority of seats on the board of directors for his family members. They received dividends, but professional management operated the company. If any relative contested the plan, they risked disinheritance. Now, the company generates more than $10 billion annually and employs more than 20,000, supporting his 65 living relatives.

Any business owner considering retirement should begin the process of succession planning at least two years prior to the desired date. Whether the goal is to retire with passive income from the business, or sell the business to finance retirement goals, it is best to make a plan for the future to avoid unpleasant surprises.

Robert Highbaugh is a veteran business consultant, who specializes in operations, process management, and customer experience. He may be reached at bob@rhighbaugh.com

Jane Muir is a business attorney, whose practice focuses on business operations and litigation. She may be reached at jane@jmuirandassociates.com

4 DCBA BULLETIN | DECEMBER 2018

Affordable HousingLocal Governments Are Responding to a Community Issue, But Are the Market Players?

The rising affordable housing

crisis in Miami is making more and more headlines from local newspapers such as the Miami Herald, to national publications, such as Forbes. The ever-increasing issue of housing in south Florida has prompted local advocacy groups, such as Catalyst Miami, to partner with educational institutions, such as the University of Miami, to form specialized advocacy groups. Advocacy groups like Community Scholars in Affordable Housing are focused on studying and proffering solutions to the affordable housing crisis on the rise as South Florida sees greater development. As noted in Forbes, Miami was rated the worst city in America for renters. The rents, coupled with Miami’s lower wages compared to other metropolitan cities, create a major burden on renters and lowers their disposable income for other necessities or luxuries. A city with cash strapped residents is not sustainable for the local economy and is not conducive to a lifestyle that attracts tourists or highly skilled workers.

These groups are doing their job by educating local policymakers, and policymakers are responding by adopting policies to address the issue. As a former Assistant City Attorney for the City of Miami, and current attorney representing local municipalities, I have seen firsthand the interest elected

officials are taking in this issue. While an Assistant City Attorney for the City of Miami, I assisted staff and the elected officials with affordable housing initiatives, and U.S. Department of Housing and Urban Development (“HUD”) loan transactions to developers building affordable housing. I know the elected officials want to ensure their residents are safe, healthy, and happy. Having stable housing, often homeownership, has been proven to raise self-esteem, which helps with maintaining jobs and interviewing for higher skilled jobs. Stable housing is correlated with children having higher rates of success in school. Local governments are seeing the concerns and adopting policies that, when combined with developers utilizing the incentives, can address the affordable housing crisis.

Miami-Dade County recently passed a pervasive policy regarding affordable housing. The policy requires incorporated municipalities to review their own codes and land development regulations to identify policies that the municipalities have and may adopt to incentivize the development of workforce housing. Additionally, the County allocated ten million dollars to the Affordable Housing Trust Fund to subsidize housing specifically serving low to moderate income households. The County and local municipalities, however, are doing much more than providing financial support. South Florida leaders and governments are recognizing the issue—the residents they serve need affordable housing and it takes more than just money.

The County and local municipalities are going further than simply offering

financial support to incentivize development that will be for low to moderate income households. As certain zoning regulations that restrict development have been identified as one of the greatest contributors to rising housing costs, many South Florida local governments are looking at their land development regulations to alleviate the burden those codes may impose. For example, the City of Miami recently passed one of its most concentrated and effective zoning policies that allows for more development of affordable housing. The City of Miami’s zoning amendment provides double the amount of density of a development if the development is for low and very-low income households. Other local governments in South Florida have begun adopting policies that provide for extra density if the developer either provides affordable units or pays into a fund that will be later used to fund affordable housing developments. Additionally, there are other incentives such as deferring impact fees or easing up on parking requirements to allow for more units on a plot of land.

It is as simple as supply and demand, yet not easy to create legal policy to implement the solution: more units at better prices. Many South Florida governments are taking a holistic approach to incentivize this much needed development. Municipalities are adopting policies that relieve developer monetary burdens without requiring government money upfront to subsidize the development such as waiving permit fees. More local governments now offer extra density, expedited permit process, and deferral of impact fees—all barriers to development that tend to drive up cost of housing on the developer which are imputed on to the buyer or tenant. Increasing density, while often

BY GIGI SOLIMAN

unpopular among current residents, is the most important aspect to lowering housing costs. It simply allows for more units and opens up availability of housing.

Awareness of the issue is increasing and our local leaders are rightfully leading by adopting policies targeted towards this issue. The question now becomes: Will real estate developers follow suit and begin utilizing the incentives our local governments have offered and build housing South Floridians can afford?

Developing affordable housing is no easy task. The profit is smaller; thus there is simply less room for error. Additionally, building in heavily populated metropolitan areas is generally not cost-effective. Land and construction costs raise the cost of building. Combining and layering all the incentives requires knowing the incentives available of each individual municipality. The benefits and tools to assist in developing affordable housing by any type of developer are available. To utilize all the benefits provided by local governments and to maximize land potential, consulting or hiring a lawyer may be a cost not desired in small real estate development but could prove worthwhile. Government is doing its part; now it is time the players in the market take notice.

Gigi Soliman is an associate at Weiss Serota Helfman Cole & Bierman, P.L. in the Firm’s Municipal Government Law and Real Estate Practice Group. As counsel to local municipalities, Gigi drafts and reviews proposed legislation, resolutions, and agreements on a variety of matters. As an associate in the Firm’s Real Estate Practice Group she provides representation for developers in real estate transactions and land use matters.

BY HONORABLE MILTON HIRSCH On December 9, 2014, Sen. John McCain broke ranks with his party’s leadership to commend the release by the Senate Intelligence Committee of

its report on the use of torture by the CIA in the “war on terror.” Himself a former prisoner of war and torture victim, McCain concluded his speech with these words:

But in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire

The Constitutional Cornerto be. It’s about how we represent ourselves to the world.

We have made our way in this often dangerous and cruel world, not by just strictly pursuing our geopolitical interests, but by exemplifying our political values, and influencing other nations to embrace them. When we fight to defend our security we fight also for an idea, not for a tribe or a twisted interpretation of an ancient religion or for a king, but for an idea that all men are endowed by the Creator with inalienable rights. How much safer the world would be if all nations believed the same. How much more dangerous it can become when we forget it ourselves even momentarily.

Our enemies act without conscience. We must not. This executive summary of the

Committee’s report makes clear that acting without conscience isn’t necessary, it isn’t even helpful, in winning this strange and long war we’re fighting. We should be grateful to have that truth affirmed.

Now, let us reassert the contrary proposition: that is it essential to our success in this war that we ask those who fight it for us to remember at all times that they are defending a sacred ideal of how nations should be governed and conduct their relations with others – even our enemies.

Those of us who give them this duty are obliged by history, by our nation’s highest ideals and the many terrible sacrifices made to protect them, by our respect for human dignity to make clear we need not risk our national honor to prevail in this or any war. We need only remember in the worst of times, through the chaos and terror of war, when facing cruelty, suffering and

loss, that we are always Americans, and different, stronger, and better than those who would destroy us. Thank you.

Senator McCain passed away on August 25 of this year.

Fair winds and following seas, John McCain.

The Honorable Milton Hirsch has been a judge of the 11th Judicial Circuit of Florida since January of 2011. He is also an adjunct professor of law at the University of Miami School of Law and at St. Thomas Law School. In 2016, he became the recipient of the Dade County Bar Association’s “Criminal Justice Award” for his outstanding contribution to Miami-Dade County’s criminal justice system. The above passage is an excerpt from Judge Hirsch’s Constitutional Calendar. If you would like to be added to the Calendar’s distribution list, please contact Judge Hirsch at milton.hirsch@gmail.com with your name and e-mail address.

www.dadecountybar.org 5

Implications of Withdrawing an Already Deposed Expert

Your expert gave some unexpected unfavorable testimony at deposition, and now you want to withdraw her. But if you do, can another party call her

at trial and mention that the other side had originally retained her? Or depose her again? Or use her deposition testimony as evidence in motion practice, at a hearing, or at trial? In Florida, the answer is yes, probably no, and yes.

Where a withdrawn expert has not yet been deposed, most Florida courts addressing the issue hold that the expert is no longer a “testifying expert,” that her opinions are work product, that she is not a “fact witness” absent personal knowledge of the underlying facts, and that she may be deposed only upon a showing of exceptional circumstances. See Rocca v. Rones, 125 So. 3d 370, 372 (Fla. 3d DCA 2013) (where expert has been specially employed in preparation of litigation but is not to be called at trial, the facts known or opinions held by her are work product, discoverable only upon a showing of exceptional circumstances); Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992) (petitioners’ initial listing of expert on witness list did not waive work product privilege; because petitioners withdrew expert, respondent could not depose expert absent showing of exceptional circumstances); Bailey v. Miami-Dade Cty., 186 So. 3d 1044, 1046 (Fla. 3d DCA 2015) (reversing trial court order allowing deposition of plaintiff’s disclosed and later withdrawn expert; defendant failed to show exceptional circumstances). See also Fla. R. Civ. P. 1.280(b)(5)(B) (party may discover opinions of expert not expected to be called at trial only “upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means requiring showing of exceptional circumstances to overcome work product protection”).

Similarly, where a withdrawn expert has been deposed, she would likely be shielded only from further depositions. While this author could find no Florida courts addressing whether a withdrawn expert who has already been deposed may be deposed again after withdrawal, the above cases suggest that this would likely not be allowed. Rather, once an expert is withdrawn, any opinions she had not yet disclosed would retain their work

product status and she would not be subject to deposition to disclose them. See Rocca, 125 So. 3d at 372; Morgan, 604 So. 2d 15; Bailey, 186 So. 3d at 1046.

However, her deposition testimony already given would not be work product and would be fair game for use in motion practice, at a hearing, or at trial. The general rule in Florida is that all materials that a party reasonably expects or intends to use at trial are subject to discovery. Northup v. Herbert W. Acken, M.D., P.A., 865 So. 2d 1267, 1271 (Fla. 2004). While you could argue that you don’t intend to call your withdrawn expert or use her deposition at trial and thereby try to “claw back” her deposition as work product, this argument would likely fail. Northrup, though it involves somewhat different facts, explains why. In Northrup, the defendant refused to produce transcripts of depositions given by the plaintiff’s disclosed expert in prior cases, citing the work product privilege. Id. at 1268. The record revealed, however, that at a hearing before the trial court, defense counsel had stated it intended to use the transcripts to impeach the expert at trial. Id. Based on this finding, the Florida Supreme Court sided with the plaintiff, explaining that “work product privilege could protect the depositions . . . from discovery, but only if [the defendant] never expected or intended to use them . . . at trial.” 865 So. 2d at 1271 (emphasis in original).

By virtue of disclosing an expert, you evidence your intent to use that expert’s testimony at trial. Once you permit your expert to disclose her opinions at deposition, you cannot “claw them back” as work product if you later decide to withdraw your expert. See also Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006) (party conduct can waive work product protection). And at that point, your withdrawn expert’s deposition testimony is fair game, and it can be used against your client in motion practice, at a hearing, and at trial. See Fla. R. Civ. P. 1.330(a) (At a trial or hearing, “any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence….”) (emphasis added); Fla. R. Civ. P. 1.330(a)(1) (“Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose permitted by the Florida Evidence Code.”); Fla. R. Civ. P. 1.330(a)(3)(F) (“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds…the witness is an expert or skilled witness.”). See

also See Doctors Co. v. Plummer, 210 So. 3d 711, 719 (Fla. 5th DCA 2017) (trial court erred in excluding expert’s deposition testimony at trial on grounds that expert had not been subpoenaed; Rule 1.330(a)(3)(F) expressly authorizes use of a deposition by any party for any purpose as long as court finds the witness is an expert); Robison v. Faine, 525 So. 2d 903 (Fla. 3d DCA 1987) (affirming trial court order permitting plaintiff to read opposing expert’s deposition testimony into evidence during her case-in-chief pursuant to Rule 1.330(a)(3)(F)).

Moreover, at least one Florida court has held that a party may call the opposing party’s withdrawn expert at trial and inform the jury that the expert was originally hired by the other side. See Broward Cty. v. Cento, 611 So. 2d 1339 (Fla. 4th DCA 1993) (affirming denial of motion in limine to exclude expert as witness or, alternatively, prohibit reference to him having been hired originally by defendant, where expert gave testimony favorable to plaintiff at deposition, was withdrawn by defendant, and was later called at trial

BY VANESSA SIMPSON

by plaintiff, who mentioned expert was originally hired by defendant).

What, then, is the takeaway? First, vet your experts well before disclosing them. Make sure their opinions align with your view of the case. Second, prepare them well for deposition. Make sure you know all the weaknesses in their opinions before you put them up for deposition. Third, if you suspect they will give unfavorable testimony at deposition, withdraw them as soon as possible, and certainly before the deposition goes forward. If you are already past that point, your best bet is to shield them from further depositions and challenge the admissibility of their deposition testimony on whatever grounds available.

Vanessa Simpson is an attorney at Shook, Hardy & Bacon LLP. Vanessa concentrates her practice in product liability, focusing on pharmaceutical and medical device matters. With a strong background in trial advocacy and court practice, as well as a deep commitment to helping her community, she brings real-world experience, compassion, and discipline to her work for clients facing the challenges of litigation. Before joining Shook, Vanessa completed a judicial clerkship for the Hon. Zoe Bush, now a Senior Judge for the Superior Court of the District of Columbia. Vanessa also is a veteran of the U.S. Army Reserve and served as a military police officer. Vanessa can be reached at vsimpson@shb.com.

Wills on Wheels

Wills on Wheels is an ongoing project created by Put Something Back, the Eleventh Judicial Circuit of Miami-Dade County’s official pro bono program.

Fifteen veterans received free legal assistance through Wills on Wheels held in honor of Veterans Day. Many thanks to the Miami and Boca Raton offices of or Duane Morris LLP for offering their services to veterans.

Pictured here are the volunteer attorneys from Duane Morris who generously donated their time and service to those in need. If you or your firm would like to serve veterans or participate in Wills on Wheels for other populations in need, please email PSB@dadelegalaid.org.

From left to right: Robert A. Zinn, Rafael G. Moreno, Roger S. Goldman, Kassia Fialkoff, Marsha Madorsky, Joanna Lardin, Maximilian Viski-Hanka

6 DCBA BULLETIN | DECEMBER 2018

Patently Impossible cont.from page 5

On Thursday, November 1, 2018, the Intellectual Property Committee of the Dade County Bar Association held the ninth annual Patently Impossible competition. The event was created by Jaime Rich Vining of Friedland Vining P.A., who chairs the Intellectual Property Committee of the Association, in support of Dade Legal Aid and Put Something Back Pro Bono Project. “We raised over $25,000 to support Dade Legal Aid and their work to protect the indigent communities across South Florida. I am so incredibly proud to support such a wonderful and hardworking organization! It is amazing to see how much this event has grown over the years,” said Vining. A dozen teams competed in this year’s race including lawyers, law students and engineers! Vining’s vice chair, W. John Eagan of Malloy & Malloy, selected a UFO Launch Pad for this year’s race. Team Kevin Cudlipp won first place, Team Nova Law IP Society came in second and Team Association of Corporate Counsel (ACC) came in third place. The venue, the de la Cruz Collection, was magnificent. “We thank the entire de la Cruz family for hosting us this year along with our incredibly generous sponsors, judges, and donors for their ongoing support of this wonderful occasion,” said Karen Ladis, Executive Director.

Competition

Competition Steve Davis & Jacqueline Kiviat

Winners…Yipin Zhang, Michael Ingram (2nd.place team), Amy Faust (3rd place), Kevin Cudlipp (1st Place)

Competition Karen Josefsberg Ladis & Family

Lori & Stuart Sobel, Geoffrey Valdes, Robert Josefsberg

Mark Brown, Bruce Levine, Steve Paulson Patently Impossible Registration Table

Roberta Gold, Alan Sutin and Karen J. Ladis

Competing Team

Jaime Rich-Vining, Jude Faccidomo, Stephanie Grossman

Jaimie Vining, Rosa & Carlos de la Cruz, Karen J. Ladis, Jane Muir

Katya Robertson, Ashley Bennett

First PlaceKevin Cudlipp

Second PlaceNova Law IP Society

Third PlaceTeam ACC

www.dadecountybar.org 7

Patently Impossible continued from page 6

Jack of All Trades, Master of None:Why Your Estate Planning Attorney Should not be Your Probate Attorney BY JUSTIN STIVERS

Spoiler Alert: estate planning and probate are not the same things. Full disclosure, I am a probate attorney and not an estate planning attorney. Yes, there is a distinction, and yes

that distinction is important. Before you seek out someone to prepare your will or trust and before you refer your clients to someone for a probate matter, there are some things you should know.

Most of the time estate planning and probate gets lumped into the same category. Even the Florida Bar has a certification titled Wills, Trusts & Estates. However, as an attorney whose practice is 100% dedicated to probate, I can tell you that though similar, they are not the same. I have attended countless networking events (with lawyers) and been asked hundreds of times what type of work I do and when I respond by saying that I am a probate attorney, almost without fail, the asking attorney responds with, “Oh, so you do wills and trusts, right?” I generally answer by saying, “Eh no, not really. I deal with legal issues after death. Wills and trusts are done before someone dies.”

The difference is really very simple. Estate planning happens before you die, and probate happens after you die. Generally, estate planning is done in order to avoid probate. Estate planning usually involves creating documents such as a last will and testament, some sort of trust and

a variety of other documents depending on the person’s assets and a whole host of other factors. It is transactional in nature, and its focus is on planning for the inevitable — death.

You could think about this in terms of family law. Nowadays, prenuptial agreements are done because many people believe divorce to be somewhat inevitable and they want to avoid a messy divorce. This is somewhat the same concept. Everyone is going to pass away; therefore, people prepare an estate plan so that their family does not have a potentially messy probate.

Probate, on the other hand, is done after someone dies and is part of administration. It is the formal process by which an estate is handed out after someone passes away. The administration is the technical steps the attorney takes to actually manage the estate. Basically, it is a process overseen by the courts to determine who gets a person’s stuff after they die. Probate can be somewhat transactional in nature in that it always involves preparing legal documents. However, unlike to estate planning, probate involves the court system, judges, e-filing, hearings, etc. It is common that there is controversy between the beneficiaries which means full-blown litigation.

So yes, both estate planning attorneys and probate attorneys deal with more or less the same topics — wills, trusts, money, death, etc. However, I would argue that they are different areas of law which means that estate planning attorneys and probate attorneys do not necessarily have the same skill sets. Estate planning is more

transactional in nature while probate involves going to court and litigation. Another comparison might be that of business attorneys. Just because a business attorney knows how to draft a complex contract, does not mean that he or she would be able to go into court and litigate a breach of that contract.

Now, how do you, the practitioner, know whether or not the potential client is seeking an estate planning attorney or a probate attorney? Most people are pretty familiar with the idea of estate planning. Financial advisors, accountants, and LegalZoom all express the importance of doing some sort of estate planning like a last will and testament. It will likely be pretty clear whether or not a potential client needs to do some estate planning as they will ask you if you do wills or trusts because they want to protect their assets and make sure their family and loved ones are taken care of after they die. However, a potential probate client is a little more difficult to spot. So, when are you, the non-probate attorney, likely to spot a potential probate issue? The three most common scenarios we see are the following:

1. Real Estate. Let’s say John Smith owns his property and he is the only one on title. When he dies, the property is now owned by The Estate of John Smith. In order for his heirs to take ownership of the property, they will have to open a probate.

2. Personal Injury. In order to open a wrongful death lawsuit or bring a claim on behalf of someone who has

died, a probate must be opened and a personal representative appointed.

3. Someone has died with assets that need to be transferred. Most people pass away without any sort of estate plan in place. Generally, if they have any assets, a probate will be necessary. Many people have some sort of policy, such as 401(k) or insurance policy, and they have not named a beneficiary of that policy, or the beneficiary on the policy predeceased the policy owner. In that case, a probate needs to be opened in order to transfer the funds from those policies to the decedent’s beneficiaries.

Now, when you are trying to determine whether or not you or your client needs to do an estate plan or needs help with a probate matter, you can think the following: estate planning comes before death and probate comes after death. Hopefully, that clears up the confusion!

The Law Offices of Justin B. Stivers handles probate matters exclusively. Please visit us at www.jbstiverslaw.com, send us an email at info@jbstiverslaw.com or give us a call at 305-456-3255.

Justin Stivers was born in Florida and raised in Knoxville, Tennessee. He earned his undergraduate degree at Appalachian State University in Boone, North Carolina, before serving in the Peace Corps in Honduras. His career eventually led him to attend law school at the University of Miami, where he earned his Juris Doctor. He opened his firm, The Law Offices of Justin B. Stivers, in 2017. His practice is committed to providing simple and efficient solutions to those going through the probate process. He may be contacted by phone at 305-456-3255, by email at info@jbstiverslaw.com or at www.jbstiverslaw.com.

Dr. Paul Pataky, Edith Osman Alberto Mujica, Mariana Muci Jody Shulman, Michele Calder Karen Ladis

Judge William Altfield, Jeffrey Rynor Jude F., Hon. Richard Hersch

Zach Rich, Bryan Wilson, Ashley Rich, Rob Weaver, Javier Sobrdo

Dade Legal Aid Staff: Jessica Zuvic, Eileen Coto, Steven Paulson, Geoffrey Valdes, Wendy Arauz, Nicholas Koletay

8 DCBA BULLETIN | DECEMBER 2018

For more information visit www.dadecountybar.org

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