Monday, May 14, 2018

Join us next month in Orlando!

Next month, at The Florida Bar Annual Convention in Orlando, our Alternative Dispute Resolution (ADR) Section Executive Council (EC) will hold its annual meeting at the Hilton Bonnet Creek and an ADR CLE/CME Program: Inside the Mediator’s Mind. The June 14th CLE/CME will occur at 1:00pm, followed by a reception to take place from 4:30-6:30pm. The ADR EC meeting is set for June 15th at 9:00am. The ADR Section plans to continue advancing new programs and opportunities for continued growth and participation in the section. The ADR Section was established in 2010 to provide a forum for lawyers interested in alternative dispute resolution and to provide for discussion and exchange of ideas leading to an improvement of individual ADR skills and abilities. The ADR Section keeps members informed and updated regarding legislation, rules, and policies in connection with mediation and other ADR processes and the responsibilities they impose on mediator and arbitrator members, as well as provide quality continuing legal education programs. Additionally, ADR Section committees are open to members to plan and execute section activities, events, and programs to benefit section members. More information can be found at ADR section website, www.fladr.org. Our goal is to make the ADR Section more accessible to all Florida Bar members, engaging them through information on available on the website, such as links to MEAC opinions, and by our social media posts on Facebook and Twitter (@FlaBarADR). In addition, each issue of the section’s "News & Tips" publication can be viewed from the website. See the Bar's Annual Convention page for a full schedule of events here-- https://bit.ly/2G2J98F and https://bit.ly/2wDFzmf Join our ADR Section by applying here-- https://bit.ly/2wLlIRQ or click to add it when paying your Florida Bar dues renewal-- https://bit.ly/2k0fTXT

Tuesday, May 1, 2018

Deepwater Arbitrator Not Biased

The English Court of Appeal ruled that an arbitrator chairing an insurance case arising from the Deepwater Horizon oil rig explosion in the Gulf of Mexico ought to have disclosed involvement in overlapping cases, but said failure to do so did not make him biased. In a dispute following the Deepwater Horizon incident which caused extensive environmental damage along the Gulf Coast, numerous claims were made against BP, as well as Transocean and Halliburton, both of which had liability insurance from Chubb. After settling with claimants, both companies made claims under their insurance policies which Chubb rejected on the basis that the settlements were unreasonable. Halliburton commenced arbitration proceedings against Chubb and each party appointed an arbitrator. The parties could not agree on the identity of the third arbitrator who was then court-appointed to chair the tribunal. The chair disclosed that he was already in two unrelated insurance cases to which Chubb was party. Transocean later also commenced arbitration against Chubb. Chubb named the chair arbitrator in the Halliburton case as its party-appointed arbitrator. Prior to accepting this appointment, it was disclosed to Transocean that the same arbitrator was appointed chair in the Halliburton case and in the other Chubb arbitrations which had been disclosed to Halliburton. However, the arbitrator failed to disclose to Halliburton his proposed appointment in the Transocean dispute. Halliburton later tried to remove the arbitrator on the grounds of doubts as to impartiality, but a trial court found there was no appearance of bias against Halliburton which then appealed. While the appeals court accepted Halliburton’s concerns of unfairness where an arbitrator accepts appointments in overlapping cases with only one common party, the court found arbitrators, like judges, are to be assumed trustworthy and to understand that they should approach every case with an open mind. They found the mere fact of an overlap does not give rise to justifiable doubts of impartiality. While finding best practice calls for an arbitrator to disclose circumstances that would lead an observer to see a real possibility of bias, such that disclosure should have been made, they nevertheless rejected the appeal. See more here-- https://bit.ly/2I7QA3u and https://bit.ly/2I2ljir

Monday, April 16, 2018

Judge Kimba Wood Considers Special Master

U.S. District Judge Kimba Wood rejected President Trump’s request to unilaterally determine what material seized last week from his personal lawyer, Michael Cohen, is privileged. However, she may appoint a Special Master in the form of an outside attorney or retired judge to assess the records in an effort to carefully navigate the case, and asked each side for four names. Under Federal Rule 53, consent is not necessary. Subsection (a)(1) provides that non-consensual referrals may be justified by exceptional conditions that cannot be addressed effectively and timely by an available District Judge or Magistrate Judge. Notwithstanding Article III of the U.S. Constitution, non-consensual referrals to Special Masters have been sustained against constitutional attack where duties were performed under the total control and jurisdiction of the District Court. Lawyers for Cohen and Trump argued the seizure could lead to violations of attorney-client privilege. The investigation of Cohen, pitting the President against his own Justice Department, took another unexpected turn today with the courtroom revelation that one of Cohen’s legal clients was Fox News commentator, Sean Hannity. In considering appointing a Special Master, Judge Wood commented that it was not because of legal precedent, but in the interest of avoiding the appearance of bias in the politically charged case. Judge Wood said she wanted more information before ruling. Reportedly, to address concerns about “fairness” raised by Trump and Cohen’s attorneys, she said “a Special Master might have a role here. Maybe not the complete role, but some role.” It is unusual but not unprecedented for criminal investigators to seize documents from a lawyer, and there is a policy in place designed to shield information covered by attorney-client privilege using a “taint team” to review all the material and separate what is covered by the privilege. A lawyer’s communications with a client are not covered by the privilege if they did not involve legal advice or were used to further a crime or fraud. Judge Wood asked the government to make digital copies of all the material it had seized and share those files with Cohen’s lawyers, who would in turn share relevant information with lawyers for Trump. The goal, Judge Wood said, would be to have a sense of how much work would be required of a Special Master and, therefore, how long that process might take. Cohen, who is under criminal investigation for possible bank fraud and campaign finance violations, has come under scrutiny by federal prosecutors for his efforts to tamp down negative stories about Trump. In late 2016, he paid porn star Stormy Daniels $130,000 in exchange for her agreement not to discuss an alleged sexual encounter with Trump. Last week, it was revealed that Cohen had helped RNC Finance Chair, Elliott Broidy, negotiate a $1.6 million settlement with a former Playboy model who got pregnant after they had an affair. See full article here-- https://wapo.st/2HDe3qz

Thursday, April 12, 2018

Important Posts Need Appointees

The Florida Dispute Resolution Center or DRC is currently accepting applications for new member appointments to the Alternative Dispute Resolution Rules and Policy Committee and the Mediator Ethics Advisory Committee, known as MEAC.
The ADR Rules and Policy committee provides the Supreme Court of Florida with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, model ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. MEAC is a nine member body that issues written advisory ethics opinions for mediators subject to the Florida Rules for Certified and CourtAppointed Mediators. The DRC is currently accepting applications for the appointment of three certified mediators who hold any type of certification. Please submit a letter of interest and current résumé to: Florida Dispute Resolution Center Supreme Court Building 500 S. Duval Street Tallahassee, Florida 32399 Fax: (850) 922-9290 Email: DRCmail@flcourts.org Deadline: April 23, 2018. See more information at links here-- http://www.flcourts.org/core/fileparse.php/549/urlt/ADRRPVacancyNotice.pdf and http://www.flcourts.org/core/fileparse.php/549/urlt/MEACVacancyNotice.pdf and see MEAC opinions link here-- http://fladr.org/cle-events/meac-opinions/

Friday, April 6, 2018

Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ

Wednesday, March 28, 2018

Insight into Trump Stormy Settlement Agreement

This week, porn star Stormy Daniels was on CBS's 60 minutes and since her interview, the White House reportedly isn't saying much, including declining for weeks to say whether President Trump was party to a $130,000 hush-money payment his personal lawyer, Michael Cohen, made to Daniels on the eve of the 2016 election. Cohen obtained a temporary restraining order against Daniels from a private arbitrator, a retired judge, barring her from disclosing "confidential information" related to the nondisclosure agreement. A lawsuit was filed after a multiple reports alleging that Daniels and Trump had an affair beginning in July 2006 at a celebrity golf tournament and was paid money for her to keep quiet in October 2016. While Daniels initially denied the affair, her decision to file the lawsuit confirmed her part in the affair. She and her lawyer, Michael Avenatti, even included the text of the “hush agreement” as an exhibit attached to her complaint which, interestingly, uses pseudonyms for the parties and says they wish to avoid the lime, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims between them. The case was filed in L.A. Superior Court and then removed to federal court. The first controversy likely to be taken up by the judge is whether the dispute must be handled in arbitration, where Daniels is being pursued for allegedly breaching contract by making public statements about Trump. Also at issue, is who signed the agreement on behalf of whom. Although Trump hasn't formally moved yet to compel arbitration, the mere threat has prompted Avenatti to argue depositions of Trump and Cohen each are necessary in order to collect facts that bear directly on the formation of the hush agreement. See copy of initial pleadings, including agreement as exhibit linked at bottom of story here-- https://bit.ly/2GASrNK and more on federal court proceedings linked to this report-- https://bit.ly/2IdwotF

Friday, March 2, 2018

Tune in for Open Ninth This Month

Join me March 21st for my guest appearance on Open Ninth, a first of its kind podcast hosted by Ninth Judicial Circuit Chief Judge Fred Lauten. This program features candid perspectives from judges and interviews with innovators in the legal field. These 'Conversations Beyond the Courtroom' are part of a new communications plan put in place by the Florida Supreme Court that seeks to better connect the courts with citizens. Since 2001, I've mediated lawsuits in this circuit and around the state as a certified mediator. I also served as a General Magistrate in the Civil Division, presiding over circuit cases in Orange County in 2013. In this episode, I discuss my experience as a mediator and the important role of mediation as an effective tool of alternative dispute resolution in the justice system. Be sure to listen here: http://www.ninthcircuit.org/openninth