Harry Hackney Board Certified in Civil Trial Law

I am pleased to announce that as of June 1, 2012 I am Board Certified by the Florida Bar in the area of Civil Trial Law. According to the Florida Bar:

Certification is the highest level of evaluation by The Florida Bar of competency and experience within an area of law, and professionalism and ethics in practice. More than 4,500 Florida lawyers are recognized as specialists in one or more of 24 certification areas.

Certification Logo
Board certification recognizes attorneys’ special knowledge, skills and proficiency in various areas of law andprofessionalism and ethics in practice. 

 

So, what exactly does “Board Certification in Civil Trial Law” mean, and what did I have to do to get Board Certified? Here’s the explanation from the Florida Bar website:

Certified lawyers in civil trial law deal with litigation of civil controversies in all areas of substantive law before state and federal courts, administrative agencies and arbitrators. In addition to actual pretrial and trial process, civil trial law includes evaluating, handling and resolving civil controversies prior to the initiation of suit.

Every board certified civil trial lawyer has practiced law for at least five years and been substantially involved — 30 percent or more — in the area of civil trial law during the three years preceding application. To be certified, the lawyer is required to have conducted at least 15 contested civil cases in courts of general jurisdiction during the lawyer’s practice, including cases before a jury and as lead counsel. Credit is given to the lawyer if he or she has served as a judge.

Each certified lawyer must also have passed peer review, completed 50 hours of continuing legal education within the three years preceding application and passed a written examination demonstrating knowledge, skills and proficiency in the field of civil trial law to justify the representation of special competence.

I have to admit that I am proud and honored to be able to call myself a Board Certified Civil Trial Lawyer.

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Using Your Blackberry In Illinois (or Florida) Could Send You To Prison

This TechCrunch article talks about two people facing jail time in Illinois for recording conversations:  Using Your Blackberry In Illinois Could Send You To Prison.  Florida is one of the 12 states where recording a conversation without permission is a felony although not for a first offense for non-commercial purposes. Fla. Stat. sec. 934.03

Clients will sometimes try to bolster a case by recording an opposing party.  This not only exposes them to potential criminal liability, but is generally useless.  An unlawfully recorded conversation is not admissible in court.

Here is a much more detailed blog post by a criminal defense attorney:  Recording Telephone Conversations and Communications in Florida

You Can’t Dilly Dally On Your Way To Probate Court

 

The time limits in probate cases can be unforgivingly short.  For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.

The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative.  The Third District Court of Appeal held that it did apply.  Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred.  What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal.  The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.

The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate.  Most of the time limits are much shorter than in other litigation.  All claims against a decedent are barred two (2) years after the date of death.  Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.

While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida.  Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA.  But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis.  This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion.  But what about a trial court in one of the other three (3) DCAs?  Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one.  Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach.  Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law.  At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.

Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?”  that the lawyer scratches her head and says, “Well, I’ll have to do some research.”?  And later reports that “the law is unclear” or “conflicting.”  Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.

Don’t Sue! Blog? Well, Talk It Out At Least

Here’s some more information on the iPod lawsuit from the “In the eyes of the law” blog by attorney Kimberly Houser.  The question phrased by Ms. Houser is whether “blogging is better than going to court?”  I don’t know about that.  Certainly, that may the best approach for small slights or questionable business practices.

There have been a number of  instances where I did my best for a client by keeping them out of court.  A classic example of this was the engineering client who was wronged by a major national home builder.  The client was ready to sue, but my initial question was whether the client  wanted to keep or lose their relationship with this major company.  Of course, the client wanted to keep it and we adjusted our approach accordingly.  The end result was the major company admitted the error of its ways and continued to do business with the client.  That’s a result that I can take pride in.  However, there are other times where the client wants “just a letter” or where they want to negotiate, but my experience tells me that it will clearly be a waste of time.  In those cases, time and money can actually be saved by just getting down to the inevitable.

It Is Called The Volume Control, Stupid!

The Federal Ninth Circuit Court of Appeals in San Francisco is often described as the most liberal Federal appeals court in all the land.  Thus, it would normally be considered pro-plaintiff in most cases.  Nevertheless, Engadget reports that it recently upheld the ruling of a lower court dismissing a class action suit against Apple for iPod related hearing losses.  Perhaps the class representatives weren’t aware that iPods do come with adjustable volume settings.  I’m not sure that my son is aware of that.  It is always a bad sign if the ear buds are in and you can still tell what someone is listening to.

Forgotten But Not Gone — Digital Evidence Is Hard To Lose

If you’re tempted to hide evidence, don’t do it, especially if that evidence is digital.  Even before the prevalence of digital evidence chances were that you’d be discovered.  Multiple copies are often floating around, especially with medical records.  Details are often missed that show a document is missing or altered.  Not only is it likely to fail, but when you’re discovered you’ll be in an even worse position.  There will be no doubt that you’re a liar and everything you say will be tainted.

This story from “The Globe and Mail” details just how futile it is to try to hide digital evidence.  When you “delete” a file, you’re really only deleting the reference to it in a database, but the data referenced is still on the hard drive.  It is forgotten but not gone.  Forensic software can read that data.  Trying to cover your tracks by overwriting the hard drive just shows that you’re trying to hide something.

How Not To Structure A Deal: The CrunchPad Blow Up

TechCrunch founder Michael Arrington recently announced that the CrunchPad project blew up on the eve of the CrunchPad’s launch.  (See, The End of the CrunchPad) I’m not that interested in the tech or the details of the dispute between TechCrunch and Fusion Garage.  No, what I think is worth writing about are the lessons that the average businessperson can learn from this.  There are several lessons here.

Lesson 1: Don’t Do Business With Anyone You Wouldn’t Do Business With On A Handshake

In this post, Arrington mentions the “unsavory investors, borderline loansharks” that Fusion Garage raised money from.  He also alleges that Fusion Garage is a financial mess.  That sounds like a recipe for disaster.  When you’re doing business with a company, you’re indirectly doing business with their investors, shareholders, and associates too.  That is especially true if, as seems to be the case with the CrunchPad, the relationship is essentially a partnership.  Arrington makes Fusion Garage sound desperate.  The desperate turn into the greedy and the greedy will screw you.

Lesson 2: Get The Deal In Writing!

You want to do business with someone who you’d do business with on a handshake, because written contracts can be broken.  In fact, you have the right to break a contract but you must be prepared to pay the damages caused to the other party. Therefore, the other person’s integrity matters even with a written contract.  As the saying goes — trust but verify.

The CrunchPad project appears to be riddled with uncertainty as to the precise role of each party, and who owns what.  The contract should clearly state who pays what expenses and when, how the parties are reimbursed from income, and the profit split.  It is noteworthy that TechCrunch and Fusion Garage apparently had no written contract.  This is surprising because Arrington is a lawyer.  The lack of a written contract is likely to make for prolonged and extremely expensive litigation.  (One-hundred and six paragraph twenty page complaints don’t come cheap and that is only the beginning.) Without a written contract, the details of the deal must be teased out from dozens or hundreds or even thousands of conversations, telephone calls, letters, and emails.  That takes time and money — lots of both.  All of that information (much of it transmitted without consideration as a contract term or for future litigation) will provide fodder for both sides to argue over.

Lesson 3: Know Who You’re Dealing With And Act Accordingly

See, Lesson 1 above.  TechCrunch alleges that Fusion Garage and its founder “have shown a long-term pattern of deceit in their business dealings.”  Just a few days earlier he was saying how much he admired the founder and what good friends they were.  Perhaps TechCrunch is excused because Fusion Garage and its founder are in Singapore.  They claim that Singapore government control of embarrassing news made it difficult to find out about the founder’s past. Certainly, a company with TechCrunch’s reach in the tech world had other contacts in the Singapore business community. Moreover, TechCrunch now says it discovered the unsavory nature of the Fusion Garage founder last summer.  That would have been the time to quickly shorten the leash and to attempt to reduce the deal to writing. Frankly, the deal should already have been written, but this should have been a red flag to make an effort to clearly express the deal in writing.

I added the “and act accordingly” because I’ve had clients who actually did know negative information about business partners and investors and dealt with them anyway.  They almost always rue the day they did so.  When things blow up just like they should have known they would, they always say, “I knew better.”   It is amazing what you can discover on Google these days, especially in the U.S.

Lesson 4: The Best Time To Get The Deal In Writing Is When You’ve Got Leverage

Early on TechCrunch had all the power and leverage and Fusion Garage had none.  Fusion Garage probably still lacks leverage, but it doesn’t matter.  Fusion Garage has made its desperate move to grab the prize for itself at the last-minute.  Early on TechCrunch could have secured a written contract on favorable terms because Fusion Garage needed it more than it needed Fusion Garage.  Now that TechCrunch has paid expenses, widely publicized the CrunchPad, used its connections, and otherwise moved the project along, Fusion Garage no longer feels a need to share the project with TechCrunch and can make its move.  Often the greatest power a party has is the ability to walk away if the deal doesn’t suit them.  If the other party needs you, but you don’t need them that is when you have the greatest leverage.  Once the project is underway, you’ve already got a deal of some sort and its terms are inherently unclear.

Lesson 5: You May Have A Partnership Whether You Intend One Or Not

A partnership is one business relationship that requires no intent or effort to create.  When two or more persons or companies enter into a joint venture together, they have a partnership relation whether they intend one or not.  That means that without a written contract to define the relationship, rights, responsibilities, and obligations of the parties, the body of law concerning partnerships will apply.  That can be messy.

Lesson 6: Be Very Careful About Trying Your Case On The Internet Or Any Public Forum

Already Arrington is locking himself into positions and making contradictory statements by trying his case on TechCrunch.  Obviously, I’m not privy to all the emails and other information and I’m not interested in reviewing them all.  However, I know from experience that with every additional word he posts that Arrington is getting locked in to positions, probably without the benefit of a careful review of what has been said before.  Even a cursory review from one post to the next shows contradictory statements.  On the one hand, the Fusion Garage founder “was the kind of young, determined entrepreneur that I admire. I thought we’d be friends for the rest of our lives.” On the other hand, Arrington says in the next post that he’d learned last summer that the founder is “not a good guy” and deceitful.  Huh? If  Arrington learned last summer that the Fusion Garage founder  wasn’t a good guy and had previous bad business dealings, then how could he have just written what an admirable guy and friend for life he was?  A skillful lawyer can do some damage with such contradictions.