Criminals are able to perpetuate title and deed fraud schemes from anywhere in the world that has an internet connection. The criminals rely on public information, such as notices of death, in perpetrating their fraud. The modus operandi and spirit of the title and deed fraud schemes is exemplified in the famous Jane’s Addiction song, Been Caught Stealing:

“When I want something, I don’t want to pay for it,
I walk right through the door. Walk right through the door.
Hey all right! If I get by, it’s mine. Mine all mine!”

The Clerk of Court’s recording duties are administerial and governed by section 28.222, Fla. Stat. As such, there is very little that can be done to stop an individual walking through the front door of the recorder’s office, recording a fraudulent quit claim deed on the residence, and then walking right into the front door of the residence – thinking it’s mine.

Broward County attorneys need to be on the lookout and cognizant of the signs of deed and title fraud. If an attorney is representing an estate and ascertains that there is a false or suspect deed on real property then the attorney should quickly file something such as a quiet title action in order to get the Court’s attention as to what is going on. The general rule with title and deed fraud is the earlier it is detected the better it can be dealt with. Moreover, false and fraudulent deeds often have glaring issues with the actual instrument. As such, attorneys should carefully examine the deed, the names, spelling of the names, property description, the author of the deed’s information in the top left corner, where the deed is notarized, and who executed the suspect deed.

Furthermore, properties that are bank owned, second home properties, and vacant land, are usually targets for the criminals. The reason is that the owner of the property isn’t there to regularly monitor what is going on. They pick on people that are most vulnerable and usually in dire straits,

Our elected officials have made cracking down on title and deed fraud a priority and the results have been speaking for themselves. Rarely does a week go by where there isn’t a story in the news about a recent title fraud ring being busted. Just recently, a $12 million real estate property theft ring was broken up. The criminals targeted elderly owners and bank owned properties and filed civil lawsuits to quiet title against the elderly homeowners, banks and others with an interest in the property. The enterprise had at least 12 people working on the 14 properties the criminal enterprise targeted. One of the reasons for the breakup of this enterprise was a real owner of an adjacent property had a chance in-person interaction with some individuals that were pretending to be property owners. Sensing something was awry, the real property owner called the Broward County Property Appraiser’s Office and alerted of the suspicious activity. If anyone ever witnesses suspicious activity or has concerns about a property, they should immediately call the Broward County Property Appraiser about their concerns.

The goals for these criminals that perpetrate deed and title fraud can range from selling a property they don’t own, mortgaging the property they do not own, to renting the property they do not own. The bottom line is the criminals put very little money into the deed and title fraud scheme, so any positive income stream usually means they are reaping financial rewards that keep the criminals coming back.

There is a very simple, quick, and cheap way for property owners to take proactive measure to prevent deed and title fraud. The Broward County Property Appraiser’s Owner Alert Program is a free service designed to help protect property from scams or fraud by notifying the property owner if a document is received by the Broward County Property Appraiser changing the ownership of their property. All that is needed to sign up is the property identification number, and your drivers license or Florida identification number. https://web.bcpa.net/OwnerAlert. With the Owner Alert Program, a property owner is notified if the title to their property changes at all. As such, if an owner receives notification of a title change then they can immediately act and file what is necessary.  Moreover, our elected officials have taken measures to deter and decrease deed and title fraud incidents. An Interlocal Agreement was entered into on July 28, 2022 between the Office of the State Attorney for the 17th Judicial Circuit and the Broward County Property Appraiser. Pursuant to the Interlocal Agreement, the Broward County Property Appraiser’s Office assigned specially trained investigators to the Deed Fraud Unit. The investigators are tasked with identifying and investigating suspected deed fraud and related crimes. If an investigation in the Broward County Property Appraiser’s office determines that there is a reason to suspect that a crime of deed fraud has occurred, then it will turn over the information from its investigation to the Office of the State Attorney and local law enforcement.

As members of the legal community, we need to take proactive action to prevent further title and deed fraud schemes from being perpetrated. Counsel should advise all of their clients to sign up for the free Owner Alert Program and be on the lookout for indications of deed and title fraud. If there is suspicious or questionable activity, then an immediate call to the Property Appraiser’s Office should be made to alert them of the issue.

The instances of deed and title fraud in Broward County are certainly going to decrease with the Owner Alert Program, the Interlocal Agreement, and the hard work of our elected officials.

See original article here – Pages 26-27

One of the cornerstones of the discovery process in litigation is conducting depositions. Any experienced litigator will have horror deposition stories. Some of the bad behavior is conducted by the deponent, sometimes the bad behavior is conducted by counsel, and sometimes you get the double whammy where both the deponent and counsel are behaving poorly. What is crucial during your deposition is your ability to ask relevant questions without being interfered with. As a younger attorney, one of my first depositions I conducted was against a very experienced senior attorney. Right out of the gate, the attorney was actively interfering with my ability to conduct the deposition. First question asked was for the deponent to state their name, this question was immediately objected to as to form. Thereafter every question I asked was objected to as to form. I inquired to opposing counsel whether he wanted a standing objection as to form, and he yelled at me and told me he was going to defend the deposition as he saw fit.

Thereafter, when I introduced my first exhibit the attorney went on a tirade of a speaking objection and pretty much tailored and instructed the deponent how to answer the question. To say this was a frustrating exercise for a new attorney would be an understatement. I kept moving forward, albeit very slowly, while the form and speaking objections were non-stop. When it was time to take a break for lunch, this being before the time everyone had cell phones on them at all times, I went into a visitors’ office and called my managing partner on the matter. First thing he advised me was as a litigator to slow down for a moment and take five deep breaths. He then advised me that based upon what had transpired during the morning deposition testimony, we will most likely have to terminate the deposition. The managing partner then told me after we speak go pull Rule 1.310 of the Florida Rules of Civil Procedure, because it addressed this exact issue. We talked over what the strategy would be and what needed to be done in the afternoon session.

Rule 1.310(d) of the Florida Rules of Civil Procedure, titled Depositions Upon Oral Examination, provides:
At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 1.280(c). If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of rule 1.380(a) apply to the award of expenses incurred in relation to the motion.

A motion pursuant to Rule 1.310(d) can be made by a party or the deponent, as such, it governs behavior conducted by the party taking and defending the deposition. Attorneys in Florida may instruct a deponent not to answer a question “only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion to terminate.” Fla. R. Civ. P. 1.310(c); Heartland Express Inc., of Iowa v. Torres, 90 So. 3d 365 (Fla. 1st DCA 2012). Attorneys will sometimes erroneously rush to move to terminate a deposition. This is a very drastic motion and needs to be considered carefully. Judges routinely advise counsel to exhaust all efforts to resolve a dispute that threatens the ability to proceed with the deposition. When there is bad behavior at a deposition, I immediately think a record needs to be created and protected as much as possible. Let’s go back to my scenario with the senior attorney objecting to everything. In these circumstances, first thing I will do is put the attorney on notice and advise them that they are actively interfering with my ability to conduct the deposition and to stop the unnecessary and improper speaking objections. I usually reply to the first speaking objection. I will immediately address the attorney that it is not proper pursuant to Rule 1.310(c), Fla. R. Civ. P. Sometimes, I will also cite the applicable case law on record. I want to set the tone that it is my deposition and that I will not allow the attorney to interfere with it. Additionally, I have found that when you directly provide legal authority on the record the opposing counsel recognizes you are not going to allow any games and are serious. Generally, attorneys that make speaking objections will continue to make them and they tend to get more elaborate if you do not address and quash the behavior immediately.

Once you put the attorney on notice in this manner, they will usually correct their behavior. However, sometimes they persist on continuing with the bad behavior. If this is the case, I usually try to continue to ask questions and advise opposing counsel that this is my second request that they refrain from actively inferring with my ability to conduct the deposition. I will then, on the record, attempt to call the presiding Judge’s chambers requesting a brief hearing on the matter. If I am unable to reach the Judge’s chambers, I will orally make the motion on the record during the deposition specifically setting forth the bad behavior and then follow promptly and file the motion to terminate the deposition and seek attorney’s fees pursuant to Rule 1.380, Fla. R. Civ. P. Once the motion to terminate the deposition has been filed, the deposition is suspended until an order is entered on the motion.

As for protecting the record, many years ago after I made my ore tenus motion to terminate on the record, setting forth the reasons and examples of the poor behavior, opposing counsel started talking and wanted to put something on the record. I was fine with this, however, what I wasn’t fine with was the attorney suggesting on the record that I was being overly aggressive, that I was being physically intimidating to his client and him, and was continually raising my voice. Interestingly, all of the fabricated complaints by this counsel could not show up on a written record. I immediately corrected the record and put forth where I was sitting, that I never got up from my chair, that I never raised my voice. The court reporter was present as well and could be a witness regarding any of this alleged bad behavior. This halted the attorney’s attempt to try to muddy the waters before the court and protected my record. The case settled within a week and before the motion could ever be heard and ruled upon by the Court.

While most depositions are conducted without poor behavior with counsel being professional, ethical, and courteous, it is always good to be prepared for those limited circumstances where there is bad behavior. The big take away from this article should be that attorneys should exhaust all efforts to resolve a dispute that threatens the ability to proceed with the deposition. If this cannot be done then create and preserve the record of the bad behavior, and file the appropriate motion with the Court.

See original article here – Pages 14-15

Who Brings Construction Claims?

A construction delay claim can be brought by the owner, but also may be brought by the contractor, in alleging that the owner of the property did something that kept the contractor from completing the job in a timely manner, thus costing the contractor additional money which ate away at the contractor’s profits.

Causes of Delay

A lot of things can cause a delay claim. In some cases the construction contract will specify what claims are excusable and which are not, or will have other provisions to try to ensure that delay doesn’t happen or that when it does, the delay is minimal.

However, things like the following can all lead to delay claims:

1)      The conditions of the site being different than what was anticipated

2)      Not being able to access a site

3)      Changes on zooming laws, or problems with governmental agencies granting necessary approvals

4)      Numerous changes or change orders

5)      Design plans that turn out to be impossible, not feasible, or just plain defective

Who is Liable for Delay, and When?

There are a number of factors that go into analyzing who is liable for delay claims.

Of course, cause is one major question—in some cases, the delay may not be the cause of either party. However, a party will be liable for conditions that it could have foreseen or avoided completely by a party.

For example, is a hurricane a sudden unknown cause of delay? Not necessarily in Florida—it’s more likely, an anticipated foreseeable event that the parties should have known about and built into their agreement. A contractor couldn’t allege a delay because he doesn’t have enough employees; the contractor needs to make sure he or she has the resources (workers) needed to do the job.

Sometimes, it may not be the contractor or the owner that is responsible, but a subcontractor that doesn’t do its job; construction projects often can’t move forward unless all steps are done in a predetermined order.

If the contractor truly could not foresee or avoid the delay, the delay may be considered an excusable delay.

Damages for Delay

Courts won’t give damages for delay, just for delay’s sake—a party needs to show actual damage from the delay. Sometimes this can be difficult to choose. A party has to show it lost money because of the delay. A contractor can show that he had to pay extra to lease equipment for longer, or that it lost out on other jobs, because this job took longer than anticipated.

Our Fort Lauderdale construction attorneys at Sweeney Law P.A. at 954 440-3993 can help you if you have a delay claim against an owner or contractor.

Sources:

corporate.findlaw.com/law-library/delay-claims-in-construction-cases-common-pitfalls.html

levelset.com/blog/construction-delay-claim-defenses/

By way of background, the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) is a federal statute that was enacted in 1991 to address concerns relating to telephone solicitations. Congress passed the TCPA in 1991 in direct response to “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” The TCPA has been amended since its enactment to include the Junk Fax Protection Act of 2005 and the Truth in Caller ID Act of 2009. However, for the most part, the original statute has not been amended.

Florida’s Mini-TCPA seems to be in direct response to the recent decision reached by the Supreme Court in Facebook, Inc. vs. Duguid, et. al., 141 S. Ct. 193 (2020), issued on April 1, 2021, wherein the Court held that the TCPA is applicable only to random-fired calls and texts to cell phones from an automatic telephone dialing system (“ATDS”). The Court held that to be considered as an ATDS under the TCPA, a device must have the capacity to either (i) store a telephone number using a random or sequential number generator or (ii) produce a telephone number using a random or sequential number generator. The Facebook ruling overturned a prior Ninth Circuit ruling wherein the court broadly defined the type of ATDS that is subject to the TCPA. Below are some of the more important provisions of Florida’s Mini-TCPA.

Telephonic Sales Calls. Florida’s Mini-TCPA is applicable to telephonic sales calls, which is defined as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”

Broader Definition of ATDS. Florida’s Mini-TCPA defines auto-dialer more broadly than the TCPA to include “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” The TCPA’s definition of auto-dialer only includes devices that use a sequential or random number generator.

Prior Express Written Consent. Prior express written consent is required for telephonic sales calls, including text messages, the playing of recorded messages when the connection is completed, and prerecorded voicemails made using an automated system.

Rebuttable Presumption. Florida’s Mini-TCPA creates a rebuttable presumption that solicitation calls made to any Florida area code is made to a Florida resident or person in Florida at the time of the alleged call.

Prohibited Call Times. Florida’s Mini-TCPA prohibits calls to be made before 8:00 a.m. or after 8:00 p.m., local time in the recipient’s time zone. Notably, Florida has covers two time zones, central and eastern.

Three Call Rule. There can be no more than three calls made during a twenty-four hour period.

Concealment Prohibited. The caller cannot intentionally conceal its name and telephone number or use technology that displays a different caller.

Exempted Calls. Section 501.604, Fla. Stat., sets forth exemptions to Florida’s Mini-TCPA. The parties exempt from Florida’s Mini-TCPA, include those: “engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.” Additionally, calls made for charitable; religious; political; or education purposes; and supervised financial institutions, such as lenders and commercial banks, are also exempt.

Private Right of Action. Florida’s Mini-TCPA creates a private right of action wherein a Plaintiff may obtain an injunction, recover the greater of their actual damages or $500.00, plus attorney’s fees and costs. Furthermore, a court may increase the damages up to three times, or $1,500.00, for a willing or knowing violation.

While this was not supposed to be an exhaustive list of all the distinctions between the federal Telephone Consumer Protection Act and Florida’s Mini-TCPA, it highlights the key areas. Florida practitioners need to be very careful when addressing issues concerning compliance with Florida’s Mini-TCPA and need to stay abreast of all the recent changes in the law.

See original article – February / March 2022 – BCBA (browardbar.org) Page 13

The holiday season is a very important time for attorneys. I was told by one of my mentors that as a young litigator your best chance to ever really get a break and have a vacation without any court hearings or deadlines is during the holidays. While I used to relish the holiday season with the idea of vacationing and unplugging completely, reality has kicked in. Now I take some time off during the holiday season, try to unplug for a couple of days, and work on closing out the year and starting the new year. Below are some of the items that attorneys may want to consider during this holiday season.

Review your contract for legal services. The contract for legal services that you have been using as your form for the past three years needs to be reviewed carefully. Perhaps during the past year, you had some clients try to not pay for your services in full or fail to pay a cost they are responsible for by manipulating a loophole or issue with your contract. My office’s contract for legal services is a rather fluid document and gets amended as necessary, depending upon the underlying facts and circumstances. If you aren’t sure about some provisions in your contract for legal services, consider hiring an ethics attorney that is familiar with the nuances to review and analyze it. Additionally, consider sharing and comparing your contract for legal services with your colleagues. It is always beneficial to have additional sets of eyes reviewing it.

Review your accounts receivable. I used to work for a rather old school litigation partner. He would regularly bring his associates into his office at the beginning of October and go over accounts receivable closed matters with the associate tasked to the matter. The partner would provide a list of accounts that needed to be settled. His instructions were always the same “Get as much as you can now, I do not care about the discount. They will never pay this next year. Settle this account now, they will not pay you during the holiday season.” While some of us may be more sensitive about the discount than others, try to do this at the end of each year. The last thing you want to do is bring an old accounts receivable matter into your cases for the new year. This would seriously have a detrimental impact upon the idea of starting fresh for 2022.

Holiday cards/Metric. I was recently having lunch with a colleague of mine and he was relishing the fact that he had to spend all this money and time on business holiday cards. It was almost like he was bragging about the cost and the amount of the cards. I have known this attorney for years and bragging isn’t anything I ever experienced with him. So I asked “Why are you so happy about spending all this money and why are you telling me specifically that you had to order four hundred cards.” The attorney laughed at me and said, “This is how I track how my networking is going. When I started my firm sixteen years ago, I only had to order twenty-five cards. Now because of my efforts and networking, I am increasing the amount of cards that I order every year.” While it doesn’t have to be holiday cards, make sure you have a metric that you can analyze your marketing and networking activities.

Lunches. With the pandemic the idea of having a business lunch may have changed. However, it is still a good way to catch up with people. I try to make a list of individuals that I want to have lunch with. The list is broken down into three columns: one column is lunches with fellow attorneys that I know or have worked with; the second column is lunches with existing clients; and the third column is for new meetings. I try to also schedule my lunches as convenient for the parties as possible and try to meet at a mutually convenient location.

Be grateful. Willie Nelson said it best: “When I started counting my blessings, my whole life turned around.” We as attorneys have a lot of stress in our work lives. Dealing with this stress as well as clients being in difficult situations can easily lead to negative thinking. This year, in particular, we as attorneys need to be grateful. There are a ton of things to be grateful for, ranging from no longer having to be in traffic for hours to show-up for a rather routine uniform motion calendar hearing, to being able to regularly conduct your ZOOM depositions with your pajama pants on. The more grateful you are the more positive your thinking will be.

While this was not meant to be an exhaustive list, it provides some items and areas that attorneys should consider focusing on during the holiday season in order to successfully close out 2021 and start 2022 in the best position possible.

Brendan A. Sweeney, Esq., LL.M., Sweeney Law, P.A. a boutique commercial law firm in Fort Lauderdale, Florida, is an AV Preeminent Martindale Rated Attorney, that has been selected as a Florida Super Lawyer and Florida Legal Elite in 2021, and regularly handles construction, real estate, and business litigation matters throughout Florida.

See original article – Broward County Bar Association Barrister, December 2021 | Page 17 

The purpose of section 57.105, Fla. Stat., is to deter frivolous litigation. Notably, after reviewing the amount of appeals concerning section 57.105, Fla. Stat., I wonder if it has resulted in increased litigation. Section 57.105(1), Fla. Stat., provides in pertinent part that by the court’s initiative or motion of any party, the court should award the prevailing party attorney’s fee, including prejudgment interest, to be paid to equally by the losing party and the losing party’s attorney on any claim or defense that the losing party’s attorney knew or should have known was not supported by the material facts necessary to establish the claim or defense, or would not be supported by the application of then existing law to those material facts. Moreover, section 57.105(4), Fla. Stat., provides that “[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

Section 57.105 provides a statutory mechanism for recovery of attorney’s fees when asserted claims or defenses fall below the statutory threshold. Procedurally, it involves a two-step process. Any party seeking to file a motion for sanctions pursuant to section 57.105(4), Fla. Stat., must serve its motion seeking fees followed by the filing twenty-one days later. This is commonly known as the safe harbor provision, see Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla. 2011), and “give[s] a pleader a last clear chance to withdraw a frivolous claim.” Davidson v. Ramirez, 970 So.2d 855, 856 (Fla. 3d DCA 2007). A letter does not meet the mandatory notice requirements of §57.105(4), a motion does. Second, only if the opposing party fails to withdraw or otherwise correct the challenged claim or defense within twenty-one days may the movant file the motion with the court and pursue sanctions by hearing.

If you are a recipient of a motion for sanctions, the best practices are to immediately evaluate the opposing party’s position, advise your client and address it with them, calendar the safe harbor time frame, and seek advice of colleagues regarding your position. I am a big believer in the advice of other colleagues, the more sets of trained eyes reviewing the motion the better. All too often litigators can get drawn into positions and lose their ability to evaluate issues in an objective and impartial way. Additionally, if there is ever a close call regarding a position you are maintaining, try to be as conservative as possible, advise and counsel your client, and analyze the potential for filing verified pleadings. Be sure to provide your client with a thorough written follow-up concerning your discussion on the motion for sanctions, recommended course of action, the safe harbor time frame, potential consequences, and the client’s directive/decision.

Attorneys must understand that we are charged to represent our client’s as vigorously and creatively as permitted and should not be afraid of sanctions as a result. Accordingly, there is a very high barrier for the court to issue sanctions under section 57.105, Fla. Stat. In seeking to define when a claim or defense is “not supported by the material facts . . . or . . . the application of then-existing law” under section 57.105, Florida courts have applied standards that maintain a high barrier to the imposition of sanctions. For example, in Cowgill v. Bank of America, 831 So. 2d 241, 242 (Fla. 2d DCA 2002), while the Second District affirmed a summary judgment in favor of Cowgill based on the application of the statute of limitations, it reversed an order imposing sanctions under section 57.105(1) “because the Appellant’s claim was arguably supported by material facts and then-existing law” (emphasis added); see also Stagl v. Bridgers, 807 So. 2d 177, 177 (Fla. 2d DCA 2002) (“An award of attorney’s fees pursuant to section 57.105 is appropriate only when the action is ‘so clearly devoid of merit both on the facts and the law as to be completely untenable.’”) Similarly, in Goldfisher v. Ivax Corp., 827 So. 2d 1110, 1111 (Fla. 3d DCA 2002), the Third District held that the appellee could not recover appellate attorney’s fees under section 57.105 because, although the appellant “was not victorious, however neither his action nor subsequent appeal, were totally without merit.” (Emphasis added; citing Concrete & Lumber Enters. v. Guaranty Bus. Credit Corp., 829 So. 2d 247 (Fla. 3d DCA 2002)).

Section 57.105(1), Fla. Stat., provides that the court may, on its own initiative, assess sanctions; when this occurs, there is no safe harbor provision. In Watson vs. Steward Tilghman Fox & Bianchi, P.A., 195 So. 3d 1163 (Fla. 4th DCA 2016), the Fourth District Court of Appeal held that a trial court can, on its own initiative, order a party to pay attorney’s fees pursuant to section 57.105, Fla. Stat., when a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of the rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party’s defective motion. In this scenario, the sanctions were issued based upon other issues that were not contained in the defective motion. Motions for sanctions are a very valuable tool in a litigators tool box, however, they should be used in limited circumstances. If an action requires the filing of a motion for sanctions, practitioners should carefully review the statute to ensure compliance. If you are a recipient of a motion for sanctions, you need to take your blinders off and have the matter reviewed as carefully and objectively as possible so that you can proceed accordingly.

See original article – BROWARD COUNTY BAR ASSOCIATION BARRISTER Sept/Oct 2021 |Page 10-11

Recently, the Honorable Giuseppina Miranda conducted a breach of contract county civil trial utilizing social distancing procedures with everyone in the courtroom wearing a mask. Judge Miranda indicated that there were some very minor issues that came about, such as being uncomfortable wearing a mask all day, and increased time with jurors taking breaks; however, as a whole the trial was conducted rather smoothly. Judge Miranda credited this to the cooperation of the jurors, the professionalism and preparation of the attorneys involved, and the hard work of her staff.

One of the most important items that attorneys should recognize now with social distancing jury trials is that parties and attorneys need to be prepared well in advance, even more so than before the pandemic. The reasoning for this is that when the jurors are in the courthouse, they should be hearing the case or deliberating, they should not be waiting in the jury room for counsel to pre-mark their exhibits or get the jury instructions ready. Judge Miranda indicated that one of the reasons the social distancing trial went smoothly was that all the exhibits were pre-marked and provided a month in advance of the trial. This allowed for the time necessary to have the pre-marked exhibits put into a PDF format. Counsel seeking to introduce an exhibit into evidence during trial would simply advise opposing counsel please refer to the specific page of the PDF document and then proceed forward with having the exhibit introduced into evidence. The exhibit that is entered into evidence is then published to the jury through the monitors that are in front of each juror in the jury box. When the jurors go back to the jury room for deliberation, they will then be allowed to have the originals of the evidence with them. Additionally, consistent with being prepared in advance, all the motions in limine and all pre-trial motions need to be heard and ruled upon well in advance of the trial.

The physical layout of the courtrooms equipped to handle social distancing jury trials have been modified. Plexiglass now separates each juror seat in the jury box, plexiglass has also been installed in the Judge’s bench, as well as the witness and clerk benches. The times to take breaks will most likely be increased. Judge Miranda indicated that during her trial the jurors were allotted breaks and could only leave the courtroom three persons at a time. There is also a limit to two individuals at each counsel table. It is entirely up to the attorney whether they want to sit at counsel table with their client or sit with their co-counsel and have the client sit somewhere else in the courtroom.

Furthermore, with social distancing procedures there is a limit as to how many individuals can be in the courtroom during the jury trial. Currently, only the parties, their counsel, the jurors, the Judge, court staff, and the court reporter are allowed into the courtroom during trial. Family members, friends, or the public wishing to view the trial, have access by simply signing onto the Zoom link of the Judge that is conducting the trial.

Having an out of state witness appear for a trial that is on a three-week trial docket can be an incredible logistical and expensive hurdle, even without a global pandemic. Recognizing this issue, Judge Miranda permitted an out of state witness to provide trial testimony via ZOOM. This request was made well in advance of the trial and had support for allowing the testimony via remote video technology. There is judicial discretion concerning the allowance of remote video technology during trials, accordingly, any attorney seeking to have an out of state witness provide trial testimony via remote video technology should seek to have the Court’s permission for this well in advance.

One of the core issues during a trial is judging the credibility of a witness. It can be a difficult task during a trial, and the difficulty of assessing credibility is greatly increased when you cannot see the full face or mouth of a witness and are instead looking at someone wearing a facemask. A great number of plastic facemasks for witnesses have been ordered so that the credibility of a witness can be assessed just as attorneys and jurors have been doing so for hundreds of years, by looking directly at the face, mouth, eyes and overall facial expressions of the witness.

Attorneys need to be cognizant that the jury trial process in Broward County, Florida has changed and will continue to change in the future. Preparation well in advance will have a direct correlation to how smooth the trial will be. As such, we need to pay special attention and ensure that all exhibits are pre-marked, all pre-trial motions have been heard and ruled upon, that the jury instructions and verdict form are completed well in advance of the day of trial. As attorneys, we also need to make sure that we recognize that there will be new processes and procedures for jury trials in the future and to make sure we are reasonable, cooperative, flexible, and patient with them moving forward. Additionally, attorneys should be familiar with the Broward County Court Guidelines for In-Person Proceedings, http://www.17th.flcourts.org/ wp-content/uploads/2021/03/Broward-County-Court-In- Person Guidelines.pdf, and should be regularly checking the Broward County Courts Coronavirus Updates webpage, http:// www.17th.flcourts.org/coronavirus-covid-19-updates/.

Click here for original article, see page 11.

The Honorable Jack Tuter, Chief Judge of the Seventeenth Judicial Circuit, has been embracing the immense changes as a result of the pandemic, and recently discussed some of the positives that Covid-19 has brought as well as what to expect moving forward in 2021. Broward County is Florida’s second largest county, with a population just under two million people, and the caseloads are among the highest in the state. With the pandemic, Chief Judge Tuter has been faced with different challenges every month. There is no handbook for how to deal with these challenges; instead Judge Tuter has met the challenges head-on. Chief Judge Tuter regularly speaks with his counterparts in Palm Beach and Dade counties concerning the unique issues that the courts are currently facing. Additionally, there are quarterly meetings among the twenty Chief Circuit Judges in Florida, as well as regular weekly meetings when the legislature is in session. The challenges, stress level, problems and concerns, appear to be rather consistent amongst the twenty judicial circuits in Florida, despite their population size.

Chief Judge Tuter has noted that one of the biggest positives in Broward County and around the state has been the utilization of remote proceedings to conduct uniform motion calendar hearings, evidentiary hearings, and a plethora of other discovery matters. The ability of Broward Judges to transform to remote hearings did not necessarily happen overnight, however; it was very close. The Judges participated in ZOOM training, and eight high-tech video presentation systems were purchased for the courthouse. The high-tech video presentation systems allow for full blown trials to be conducted, and will be primarily utilized for trials and f irst appearance court. Chief Judge Tuter commended the Broward Judges and their staff, as well as attorneys, for embracing technology, cooperating, and being patient.

With remote proceedings, Judges have recognized that the parties are more time sensitive, i.e.: more cognizant of the time they are using, and are therefore less likely to run over their allotted hearing time. Further, the remote proceedings have signif icantly increased the ability of the general public to watch the hearings being conducted on their matters. Traditionally, parties will appear for family and criminal law matters, and Judges are recognizing a signif icant increase of parties logging on to hearings in general civil matters. The costs and time to participate or watch a hearing has now signif icantly decreased. What use to require an individual to take off a half day of work, f ight traff ic to get downtown, f ind and pay for parking, wait for the elevators, and wait for your hearing time, can now be accomplished in less than thirty minutes with the party signing-in virtually.

When asked whether uniform motion calendar hearings will be conducted remotely after the pandemic, Judge Tuter advised that this is one of the most common questions he receives, and that the answer is yes for sure. Judge Tuter has already started addressing the different logistical issues concerning using remote technology when the pandemic is over and requiring that all Broward Judges use remote technology.

One of the biggest issues that needs to be addressed is Broward County’s jail capacity is at 80%, while the lowest it has been during the pandemic was 63%. The increase is primarily attributable to more arrests. Judge Tuter has a f inger on the pulse of this issue, and already has a plan to address the over two hundred in-custody felony violation of probation cases that are set to have face to face hearings in the middle of March, which will most likely decrease the jail capacity. Judge Tuter is hopeful and optimistic that in-person jury trials will begin in April. The courthouse had glass partitions installed in eight county and circuit courtrooms in order to have in-person jury trials. The logistics as to which matters receive priority for the courtrooms is currently being addressed.

The civil divisions in Broward are working as eff iciently at closing cases as they were just prior to the outbreak of the pandemic. However, there has been a substantial increase of approximately twenty thousand county civil matters. This increase could be attributable to the recent increase in the jurisdictional limit to thirty thousand dollars, or could be an aberration as to Covid-19. Judge Tuter is already closely monitoring this issue and noted that some of the County Civil Judges may have higher caseloads, or some Judges currently in the criminal division may have to help out with the additional matters.

Chief Judge Tuter currently sees a light at the end of the tunnel with the increase of vaccinations. However, there is currently no rush to fully open up the courthouse until it is safe for everyone. The logistics related to social distancing in a twenty-story tower with eight elevators is mind-boggling, yet have already been started to be addressed. While we cannot be certain as to what the future holds, we can be certain that Chief Judge Tuter will be very prepared for any future challenges and will do everything in his power to ensure that parties’ due process rights and access to the courthouse is protected.

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Pursuant to section 102.141, Fla. Stat., each Florida county shall have a canvassing board, that shall be composed of the supervisor of elections, a county court judge who shall act as chair, and the chair of the board of county commissioners. The duties of the canvassing board are to meet in a building accessible to the public in the county where the election occurred at a time and place to be designated by the supervisor of elections to publicly canvass the absent electors’ ballots as provided for in section 101.68, Fla. Stat., and provisional ballots as provided by sections 101.048, 101.049, and 101.6925, Fla. Stat. In addition to training workshops, a board member’s duties will commence as early as the pre-election testing of voting equipment scheduled within ten days before early voting. Thereafter, as the vote-by-mail ballots begin as early as fifteen days before an election, the duties of the canvassing board intensify through election night reporting, post-election voting system audits, and certification of election results.

While during normal times having a Broward County Court Judge assigned to the canvassing board can create issues with managing dockets, at this juncture it is even more difficult. There will be one Broward County Court Judge assigned full-time to the canvassing board and will be working for a six-week period, eighteen hours a day from 7:00 am to 1:00 am. In addition to the one County Court Judge assigned to the canvassing board there will also be three alternates selected as well, these alternates are usually Judges, however, they can also be trained hearing officers and staff attorneys. Due to the pandemic, there are approximately eight thousand civil county cases that have been reset into June and July in addition to the normal cases coming into the system in June and July. This. coupled with the potential absence of Judges serving on the canvassing board, means that the dockets for the Broward Judiciary may increase significantly during the election season.

With social distancing measures being vitally important the canvassing board is going to be faced with some new challenges in canvassing the ballots in public as required by statute. Marion County had already created a plan  addressing how to have the appropriate personnel canvass the ballots. Broward County along with the other counties in Florida are working on the logistical layout of the canvassing board.

The Broward County Supervisor of Elections, Peter Antonacci, has been encouraging voters to vote by early voting due to the pandemic. The important dates to consider are the primary election that will be conducted on August 18, 2020 and the general election that will be conducted on November 3, 2020. The vote-bymail ballot ‘send’ deadline  or the primary election is September 19, 2020 for the general election. Voters that are concerned about the vote-by-mail process have the option to drop off their ballots at the Supervisor of Elections offices, located downtown and in Lauderhill, and request a receipt when they drop off their ballot. With the potential significant increase in vote-by-mail ballots this may result in a longer time in canvassing the votes. Each four-page ballot will need to be precisely fed into the voting equipment, and with approximately one million voters in Broward County, this process can potentially take a great amount of time. Voters that wish to vote in person on election day can be assured that appropriate measures and safeguards will be in place to address the current issues with the pandemic. In person voting will most likely take longer than it has in the past because there will not be the same amount of voting equipment in the voting space, in order to meet social distancing requirements.

What does this all mean for members of the Broward Bar? We should all do our best to vote early, and to encourage other Broward voters to do so. Additionally, if the dockets in Broward are larger than usual, or there are issues in obtaining hearing dates, we need to do our best to be patient during these trying times and understand the importance of democracy. As President Theodore Roosevelt stated on September 7, 1903 “[i] n the history of mankind many republics have risen, have flourished for a less or greater time, and then have fallen because their citizens lost the power of governing themselves and thereby governing their state.”

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