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.
Courts encourage parties to narrow the issues and to stipulate to facts and other matters that are not a disputed issue. These stipulations make for a quicker trial saving the court time and the parties both time and money. In a recent Fourth District Court of Appeal case, the Court slapped down a party for engaging in a game of “gotcha” by reneging on a stipulation. The trial court abused its discretion when it allowed the defendant insurance company to get away with it.
The opinion begins with an attention-getting line — “This appeal pits ‘integrity’ in the practice of law against an unwarranted game of ‘gotcha.'” Fortunately, integrity won out over gotcha on appeal although not at the trial court level. In the pretrial stipulation, in several pretrial hearing, and in the opening statement, counsel for the defendant insurer agreed that the only issue was the amount of damages owed to the insured, which had acquired its rights by assignment. The pretrial specifically stated: “[The assignor] assigned its rights to the insurance proceeds [the purchaser] on December 23, 2005.” Thus, the parties specifically agreed to the fact of the assignment.
Nevertheless, after the plaintiff rested its case, counsel for the insurer moved for a directed verdict and argued that the plaintiff had failed to prove the existence of the assignment. Plaintiff’s counsel reminded the court of the stipulation and the motion was denied. The motion was renewed at the close of all the evidence, and was again denied.
Persistence paid off though at the meeting to discuss the jury instructions (i.e., the charge conference). Insurance counsel asserted that the issue of the assignment was a “question of fact for the jury.” This time the trial judge disregarded the argument that the fact of the assignment had been stipulated and allowed the jury to be instructed that it should determine whether a valid assignment had been made to the Plaintiff. Not surprisingly, because there had been no evidence of an assignment due to the stipulation, the jury found there was no assignment and ruled for the insurance company. The trial court refused to grant a new trial when the Plaintiff requested one. Fortunately, the Fourth DCA reversed this travesty of justice on appeal, and reaffirmed the binding nature of stipulations and that once a fact is stipulated no proof of it is required.
I would like to say this has never happened to me. Unfortunately, this or something similar happens all too often. Early in my career I had defense counsel try a nearly identical “gotcha” on me. They stipulated to the liability of a vicariously liable defendant. That is, if the actively liable defendant was guilty, then the vicariously liable defendant was liable. After I rested my case, opposing counsel argued that I had failed to prove the vicariously liable defendant owned the car and lent it to the actively liable defendant. When I said that I would reopen my case and present that evidence and the judge said he would allow me to, insurance counsel capitulated on that issue.