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.
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.
Being the spouse of a decedent comes with some significant rights. A surviving spouse can claim thirty percent (30%) of a significant portion of the spouse’s estate as an “elective share.” The surviving spouse may also be entitled to an $18,000.00 family allowance, exempt property, a life estate in the deceased spouse’s homestead, and other benefits and rights.
Unfortunately, this means that it is not uncommon for unscrupulous individuals to marry people late in life to gain these rights. Fortunately, the Florida legislature recently passed a law that makes it possible to deny the rights and benefits of a surviving spouse to a spouse who procured the marriage by fraud, duress, or undue influence. See, Fla. Stat. sec. 732.805 Previously, heirs and beneficiaries could do little to challenge a deathbed marriage.
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.