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Robert A. Goldman of Fox, Wackeen, Dungey et. al. law firm is scheduled to teach at the National Business Institute's teleconference on  "Using Receiverships in Foreclosure:  The Who, How and Why (and Why Not)."  The Teleconference will be held on August 23 at 11 AM EST.  This 90-minute teleconference offers CLE credit for attorneys and provides the opportunity to gain a better understanding of the liabilities the “mortgagee in possession” is exposed to, including zoning violations, deterioration of the property, third party injuries and more.  Seminar attendees will benefit by discovering the advantages and disadvantages of appointing a receiver when dealing with distressed commercial property, reviewing the court procedures for requesting a receiver be appointed and identifying the receiver’s responsibilities. 

"This teleconference is designed to help attorneys, lenders, real estate developers and other professionals to understand this complex situation," said Goldman. "The economic environment continues to provide new  challenges and knowledge is key."

Mr. Goldman has been practicing law for  over ten years and is a partner at the law firm of Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, L.L.P., located in the Tower Building at Willoughby Commons in Stuart.  He practices in the areas of commercial litigation, construction and real property litigation, and foreclosure.  Mr. Goldman handles all levels of mortgage foreclosures, statutory lien foreclosures, community association lien foreclosures, construction lien foreclosures, and judgment lien foreclosures. He has previously lectured on contracts, mortgage and lien foreclosure topics, and practices in multiple circuits spanning much of the state. Mr. Goldman earned his B.A. and J.D. degrees from the University of Florida, with honors, and is a member of the Martin County and American bar associations, as well as The Florida Bar.  Mr. Goldman has also authored and will teach  a class in the NBI  "The Nuts and Bolts of Collection Law" workshop scheduled for September 13 in West Palm Beach.

The firm has been busy and continues to grow and change. Our 2009 summer intern, Michael Blum finished law school, passed the bar and joined us as an associate attorney.  Attorney Raymond Robison has been admitted to and is attending the online Masters of Law and Taxation (LLM) program of the University of Alabama School of Law.

Tom Wackeen was recertified by The Florida Bar, making it twenty years for him as an expert in Civil Trial Law. My recent recertification also marks twenty years that I have been a Board Certified Real Estate Attorney.  Certification is the highest level of evaluation by The Florida Bar of competency  and experience of attorneys in the areas of law approved for certification.  Did you know that fewer than 5% of Florida Bar Attorneys  are board certified  in their area of expertise?  At FWD we are proud of the fact that eight of our attorneys have undertaken the additional work and commitment to achieve this distinction. 

Shelly Stirrat, Aaron Foosaner and Bob Kilbride participated in MCBA Constitution Day presentations to local students. Goldman spoke to the Paralegal Association of Florida, Treasure Coast Chapter, on the issue of foreclosure litigation and has also been an instructor for the National Business Institute. 

Jennifer Waters, Robert Goldman and Shelly Stirrat were named as “Florida Super Lawyers Rising Stars” while Jack Sobel and George W. Bush Jr. were named “Super Lawyers.” (Jack’s fourth time!)

Laws continue to change regarding Estate Planning.   Consequently, TJ Heinemann and Raymond Robison have written an article on the subject.  Deborah Beard has written an article about the mediation process in the area of family law.  Jack Sobel reported on some notable verdicts in the area of personal injury. 

We hope you enjoy this issue of our newsletter and stay warm as Florida experiences one of its coldest winters on record.  As we hear of the northern blizzards, we remain thankful for our beautiful

As of January 1, 2010, there is no estate tax or generation-skipping tax (“GST”).  While most assumed that Congress would pass legislation before the end of 2009 to continue the estate tax and GST at the 2009 rates, the inaction of Congress has placed everyone in a time of “massive, massive confusion” according to Senate Finance Committee Chairman, Max Baucus.

For 2010, the estate tax and GST are inapplicable; then in 2011, the estate tax and GST will be reinstated.  In 2011, the applicable exclusion rate will revert to $1 million and the GST exemption will be $1 million (the GST exemption will be indexed for inflation since 1997).

The gift tax applicable exclusion remains at $1 million for 2010 and 2011; however, the gift tax rate for 2010 decreased from a top rate of 45% to 35%.

While there is no estate tax or GST for 2010, complicated “step-up basis” rules apply in 2010.  Despite having no estate tax in 2010, the “step-up basis” rules could result in tax upon a decedent’s death that would not have arisen under the 2009 tax regime.  These “step-up basis” rules will affect decedents with assets that have low basis compared to the asset’s fair market value, and some experts predict that the “step-up basis” rules will affect more estates than if the 2009 tax regime was still in place.  If the fair market value of your assets are $1.3 million or greater than your basis in the assets, additional planning may be necessary to shelter your estate from taxes.

In addition, it is prudent to have your estate plan reviewed to determine whether a surviving spouse is properly provided for if you pass away in 2010.  Several estate plans establish a family trust and a marital trust.  The family trust is funded with assets that pass free of estate taxes.  The remainder of the decedent’s assets passes to a marital trust for the benefit of the decedent’s surviving spouse.  Since there is no estate tax in 2010, the family trust would receive all of the decedent’s assets.  If the surviving spouse is not a beneficiary of the family trust, the surviving spouse may not be provided for in the manner intended when your estate planning documents were first drafted.

Unfortunately, few planning opportunities exist until Congress determines whether it will try to pass estate tax and GST legislation during 2010.  Congress may try to pass legislation that reinstates the estate tax and GST retroactively to January 1, 2010.  If that occurs, attorneys and CPAs have already mobilized to file legal action challenging the Constitutionality of making such legislation retroactive.  If legal action is pursued, years may pass before a definitive answer is rendered as to the Constitutionality of such retroactive legislation.  Therefore, making large gifts to grandchildren in 2010 (which are currently GST exempt) may result in a large tax bill in a few years, if courts determine that legislation can be implemented retroactively.

However, some new planning strategies can be implemented in 2010 as a result of the new tax rules.  If you were contemplating making a large, taxable gift, now is the time.  Since the top gift tax rate is now 35%, reduced from 45% in 2009, a taxable gift to your children would result in a smaller tax hit than previous years.  Also, in 2011, the top gift tax rate increases to 55%.  With the estate tax returning in 2011, currently with a smaller applicable exclusion, removing assets from your estate may also result in a lower estate tax bill in the future.

Also, if you are currently a beneficiary of a marital trust that will be taxed upon your death, it may be a good idea to have the trustee make a significant distribution to you, which can be gifted to your children, taking advantage of the 35% tax rate.

It is a confusing time for estate planning practitioners and clients, who believed that their estate plans were finalized.  With tax laws consistently changing, it is important to review your estate plan every few years, but in times of extreme tax law changes, such as now, it is prudent to review your estate plan to ensure that your assets will pass to your beneficiaries in the amounts that you desire.

Sarah and I had so much to be proud of.  We had both just finished college and our families held a large celebration party for us.  We really did not expect it, but we were gifted a few large checks and made the decision that very night to use the money to buy a small cottage where we would begin our lives together.

We found the perfect cottage located near our jobs.  Sarah had been hired as a loan officer at the local bank, Be Happy & Save, and I landed a junior level marketing job at an  engineering plant.  I even got my own office with my name on the door, James Alton, Marketing.

The cottage had everything we wanted, including a large fireplace in the living room and a spacious den to use as our home office.  We had a large lot and planned to plant several fruit trees and a vegetable garden.  We even had the white picket fence.

We never planned to have a big wedding or spend our money foolishly.  We had a quiet wedding with only a few family members and went to the mountains for a short honeymoon.

While settling into our cozy home, we both realized something was missing-we needed a dog.  We decided to adopt from the local Humane Society and came home with Daisy, a two year old Pomeranian.  She was already house broken so did not require much work from us and quickly became a part of our family.

Two years later, following our careful plan, Sarah became pregnant with our first child, Sam.   We agreed that Sarah would stay home with Sam at least until he started school.  I had already been promoted to Senior Assistant of Marketing and had received a nice bonus check.

Sarah took care of our finances and did a wonderful job at stretching a dollar.  This became even more important when our daughter, Grace, was born two years later.  I was so proud of Sarah as she took on her new roles of stay-at-home mom, bill payer and  later, home-school teacher.

Still, money was tight, so when I was offered an exciting promotion that involved more pressure and a lot of travel, Sarah and I decided that I couldn’t pass it up.  With all the travel, I only  saw Sarah and the kids on weekends, but the pay was fantastic and life seemed good.

I guess that’s when the relationship between Sarah and me started to break down.  Neither of us realized it; but before long, we just were not able to have a civil conversation with each other. Even the kids were complaining about our fighting so much.

It seemed that the white picket fence had begun to crumble.  We each met with divorce attorneys and learned about our rights and responsibilities.  I thought we could at least separate in a mature fashion, but I was completely blown away with Sarah’s requests.

She wanted our white-picket-fenced home and to allow me only a few days a month visitation with our children.  She even wanted Daisy, our dog!  She claimed that the money we received from the graduation party belonged to her because it came from her family.   Since we used the money as the down payment on the house, the house really belonged to her.

I did not know anything about our finances since Sarah paid the bills.  I had no idea that she had opened bank accounts in her name only.  Even both of our cars were titled in her name.

I really had been the good guy in this marriage.  I worked substantial hours and gave Sarah all of my money.  Now she was trying to use this against me and even wanted half of my retirement fund!

It was comforting to learn from my family law attorney that I was entitled to equal access with my children.  Just because Sarah had stayed home with them did not give her an automatic advantage.  In fact, if there is not enough money to go around, Sarah may need to get a job.  I learned that Sarah would have to give me copies of all the bank records so I could at least trace where all our money went. The gift money had been deposited into a joint account, so Sarah just might not have a greater interest in the home than me.

Daisy, as loved and adored as she was, was considered to be an  “asset” and we had to equitably divide our time with her.  Believe it or not, as we sat across the mediation table from each other, it was Daisy that helped settle our case.        Sarah and I seemed to realize at the same moment that we would be parenting our children together forever and fighting over the distribution of our assets, including Daisy, would hurt our kids.  Our family law attorneys suggested that we get counseling to help with the grief and despair that happens during most divorces.

I do not have a cottage with a white picket fence any longer.  Actually, Sarah got the home.  But I live with the peace that, with our family law attorneys’ help, we resolved everything and now have a chance for a new beginning and a new life.

One of the most active areas of litigation in courts today is wage and hours lawsuits brought by disgruntled employees against former employers. This has been fueled by the mistaken belief by many companies that they can designate an employee as “salaried” or give them a particular “title” and then simply require the employee to work overtime without paying the employee overtime pay. Unfortunately, this business practice is ill advised and can lead to costly lawsuits.

The Fair Labor Standards Act (FLSA) requires employers to pay overtime, or 1.5 times the regular rate of pay, to all employees who work over forty (40) hours in a workweek.  This is mandatory unless the company can prove that the employee qualifies for one of several exemptions from overtime.  It is extremely important to remember that it is NOT how you classify, label or designate an employee, or the title you give an employee, that determines whether they are exempt from overtime.  Rather, it depends solely on their duties and responsibilities. Simply put: an employee is not exempt from overtime just because you pay him a salary or give him a particular title.

For an employer to safely exclude an employee from overtime pay, the company must carefully analyze the duties of the employee.  Courts which are confronted with lawsuits for overtime pay will review not only an employee’s duties and responsibilities, but may also review your job descriptions to determine if the employee qualifies as an “exempt” employee who does not have to be paid overtime.

Let’s take a look at some of the more common examples of employees who are excluded from overtime pay and can be required to work overtime without extra pay.  Keep in mind that all elements must be met.

I. Executive Employees: To be an executive employee and not entitled to overtime, the company must prove each of the following:

II. Administrative Employees: These employees frequently support the functions of executive employees, but must independently do the following:

III. Professional Employees:  This category frequently includes lawyers, doctors, accountants and others who must meet the following:

IV. Outside Sales:  These employees perform the majority of their work outside the office, and are exempt from overtime if they perform the following:

Employers can avoid making the common mistake of failing to pay an employee overtime by carefully analyzing an employee’s duties. Don’t withhold overtime pay simply because you pay an employee an annual salary or give them a particular job title.  If they do not meet the “duties” test, then an employer must pay overtime regardless of the employee’s classification, status or job title.   When in doubt, consult with a qualified attorney.

We’ve been busy at Fox, Wackeen, Dungey-in the office and throughout the community. Some of the highlights of the past year include:

Board membership and committee chairmanships for the Martin County Bar Association, Big Brothers Big Sisters, Florida Oceanographic, Treasure Coast Wildlife, American Red Cross,  Human Resources Management Association and The Arts Council.

The firm has been busy and continues to grow and change. Our 2009 summer intern, Michael Blum finished law school, passed the bar and joined us as an associate attorney. Attorney Raymond Robison has been admitted to and is attending the online Masters of Law and Taxation (LLM) program of the University of Alabama School of Law.

Tom Wackeen was recertified by The Florida Bar, making it twenty years for him as an expert in Civil Trial Law. My recent recertification also marks twenty years that I have been a Board Certified Real Estate Attorney. Certification is the highest level of evaluation by The Florida Bar of competency and experience of attorneys in the areas of law approved for certification. Did you know that fewer than 5% of Florida Bar Attorneys are board certified in their area of expertise? At FWD we are proud of the fact that eight of our attorneys have undertaken the additional work and commitment to achieve this distinction.

Shelly Stirrat, Aaron Foosaner and Bob Kilbride participated in MCBA Constitution Day presentations to local students. Goldman spoke to the Paralegal Association of Florida, Treasure Coast Chapter, on the issue of foreclosure litigation and has also been an instructor for the National Business Institute.

Jennifer Waters, Robert Goldman and Shelly Stirrat were named as “Florida Super Lawyers Rising Stars” while Jack Sobel and George W. Bush Jr. were named “Super Lawyers.” (Jack’s fourth time!)

If you believe that a dissolution of marriage is forthcoming, you may want to take steps to get prepared. Not only do you need to be prepared emotionally, but you should also have the knowledge necessary to protect yourself during the divorce proceeding. Emotionally, you will need to be ready to go through the grieving process. You may want to consider finding a therapist who can help you through this difficult and painful process.

In addition to preparing yourself emotionally for the dissolution of marriage, you need to insure that you have the necessary information to move forward. As with anything else, knowledge is power. You need to be knowledgeable about your income, your spouse's income and your assets and liabilities. Find the file cabinet in your house where all of the important paperwork is stored and review and copy all of the relevant financial information, including but not limited to: tax returns, both individual and corporate or partnership, paystubs or other evidence of income, check book registers, bank, brokerage and retirement account statements, credit card statements, loan documents including loan applications, financial statements, deeds to real property, all insurance information and any agreement between you and your spouse, including prenuptial or antenuptial agreements, or any court orders entered regarding any issue in the dissolution of marriage action.

During the dissolution, you will be required to exchange discovery documents, including the information listed above. You will also be required to complete an affidavit listing all of the assets and liabilities of the marriage. Therefore, the earlier you obtain this information, the better your position will be during the dissolution.

Attention Investors - One of the last great opportunities to build on your equity and save on taxes is provided by Section 1031 of the Internal Revenue Code of 1986, as amended, commonly known as a "1031 Exchange" or a "Tax- Deferred Exchange". Completing a properly structured exchange (i.e., the sale of your income or investment property and the acquisition of new income or investment property), through a qualified intermediary, allows the taxpayer to defer the capital gain tax that would ordinarily be paid on the sale. You can exchange single or multiple properties, and the values of the properties do not need to be the same. There is no limit to the amount or the number of times you can exchange. What's more, the exchange need not be simultaneous - the transaction can be structured so that the new property can be acquired after, or even before, the relinquished property is sold. However, there are important rules and strict time frames that need to be considered. We would be happy to discuss these and the specifics of your transaction to assist you in this potential tax benefit.

It came in the midst of a busy day's barrage of new mail, phone calls, conferences and meetings and so its significance could easily have been overlooked. It was just a voice mail message from a law student at the University of Florida - looking for a summer clerking position. No reason for it to stand out - most of the lawyers in the firm are Florida alumni and the firm keeps regular contact with the placement office there. But this message was very, very special. It was from a young lady whose name evoked memories of a very inspiring example of the American dream.

The story began down in Miami in the early 80's. I lived in northern Dade County and practiced downtown. My commute took me past a particular church, located just off the Interstate, an exit or two before my own. On Fridays, a middle-aged Latin man with a pleasant smile, (I'll call him "Roberto"), parked a beat up old van in the church parking lot, opened its back doors, put out a make-shift sign, and sold fresh flowers in generous bunches. Debbie and I were newlyweds then, and I regularly stopped during my Friday afternoon ride home to pick up a bunch for her. I can't help but smile as I remember how special she looked, standing at the sink in the tiny kitchen of our first home, cutting the stems of those colorful flowers, as she arranged them in a vase. Our home seemed especially cheerful and cozy those weekends, with fresh flowers on display.

Anyway, after I had stopped several Friday afternoons, and we talked a bit, a casual friendship developed between us. Roberto's English was crude; but I enjoyed the opportunity to practice my Spanish. I learned that he was from Uruguay - a country in South America where his wife and two small children were still. The country was beautiful, he told me, and the people gracious and kind. But there were political problems and not all were free to live as they would choose. I remember his reluctance to speak specifically, but it was soon apparent that his reasons for leaving his homeland were not casual. He had come to America to build the foundation for a better life for himself and his family, and as soon as he had the money, he planned to bring them to Florida. During those few minutes we spent together, I recognized his gentle nature and his warmth and friendly spirit. Roberto was a kind man, with simple goals. He had been through much, but was determined, with faith in all that is good, to work himself up to a better place.

One afternoon, his usual smile was replaced by an anxious and worried expression. When I asked what was wrong, he tried to defer my question. He knew that I was a lawyer, but was hesitant to tell me his problem for fear that I would think badly of him. It seemed that he had been cited by the police for, (and I am not making this up), "selling flowers from a non-permanent structure." Apparently, near-by shop owners had observed his growing popularity, (which was due, no doubt, to the combination of his affable personality and the high quality and low price of his flowers), and had complained to police that he was in violation of local zoning regulations.

I was anxious to help him, although the citation was answerable in criminal court - a very foreign place to a strictly civil lawyer, like me. Nonetheless, I offered to accompany him to his hearing. He told me that he didn't have much to pay, but I assured him that I wanted nothing - other than the opportunity to help a deserving friend. He gratefully accepted my offer, even after I warned him that I had never, ever been in a criminal courtroom, nor had I ever worked on a matter like his. But he really had no choice, since he knew no other lawyers and would not have been able to afford one anyway.

I spoke to the minister of the church which owned the parking lot where Roberto ran his business. I learned that the church loved having him there. He would create the most beautiful arrangements and bring them to Sunday services. Everyone had come to appreciate his work ethic and his goodness, despite the fact that there were few Spanish speakers in the congregation. The minister offered to come to Court with us to explain to the Judge that Roberto was always welcome to use the church parking lot.

I will not soon forget that morning in criminal court. Roberto, the minister and I sat together in that crowded room listening as the judge dealt with case after case arising out of the imperfect nature of human kind. Assaults and batteries, robberies, drug dealings - so many sad and ugly stories. Roberto's case didn't seem to belong there at all. Surely the Judge would see it that way and would quickly dispose of the charges against Roberto. Not so!!!

When the Judge called Roberto's name, we approached the bench to stand alongside an over-worked, dour-faced, short-tempered prosecutor. She quickly advised the Court that "the Defendant" had been cited for the same infraction on two previous occasions and had persisted in his "criminal behavior." In fact, she argued, it appears that this defendant thinks of himself as above the law. If he is convicted, she suggested (in a tone that could have easily been mistaken for bellowing), he should spend some time in jail. The Judge looked down at Roberto, like he was a hardened criminal, and sternly nodded his approval. I had been pretty calm until then - smiling and loosely comfortable - but at that moment an intense reverberation began inside my head, and I was instantly covered with sweat. Roberto was not sure what was being said, but he could tell bad things were happening to his lawyer's confidence and that was not good. With a facial expression like a frightened puppy, he looked at me for an explanation. I regrouped long enough to tell him that everything was fine, todo esta bien, but what I was really thinking was what kind of lawyer couldn't even keep a nice man from going to jail for "selling flowers from a non-permanent structure."

Well, the long and the short of it was that Roberto plead guilty and was placed on probation. No costs to pay, no fine, and, most importantly, no time in jail. The major condition of his probation was that he could not, ever again, sell flowers from a non-permanent structure. If he did, and he was caught, he would have to serve at least thirty days in the county lock-up.

Now it may seem hard to believe, but that little condition of probation was the best thing that ever happened to Roberto and his family. No longer able to sell flowers out of the back of his van, he had to search for a lawful American venue. And what could be more lawful and more American than a Little Havana grocery? Yes, the next I heard of Roberto, he had arranged with Sedano's supermarket to sell flowers from their store. And when Sedano's did well and opened another store, Roberto was able to sell more flowers. And then another store was opened. And so on, and so forth, until Sedano's was a huge success in Metropolitan-Dade County and Roberto was a hugely successful part of it.

Roberto's family quickly joined him in Miami where they lived together in a house he was able to buy. I can only imagine the joy that had to have swelled up in his heart when they were all reunited. And the pride that he must have felt. Could there be a better illustration of the word "success" than what Roberto had been able to do for his family?

I lost touch with Roberto after I moved here from Miami 7 years ago, but we did exchange Christmas cards. So I knew that his children were growing up, as were mine. And I heard mention that Roberto's oldest child, his daughter, had been working on her own version of the American dream. But it wasn't until I listened to her speaking on my voice mail, here in my office last month, that I realized what that entailed for her. She was the law student seeking the summer clerking position, on her way to a career as an American lawyer.

This article, written by Personal Injury Attorney and FWD Partner Jack Sobel was published in the Palm Beach Post on March 4, 2007. Copyright 2003-2003 Jack Sobel

After "lawyering" for several years, I began to notice something which you might call the "capital-happiness gap." The more successful my practice became - and indeed my income had been increasing steadily - the more anxious, aggravated and worried I was. Earning and managing the money was stressful enough, but then, as our standard of living improved, we also stressed about sustaining it. It seemed like the more we had, the more we needed to have. If anything, the increase in financial success had caused a corresponding decrease in actual happiness.

Anyway, each time a substantial case resolved, the office would gather to celebrate. And more and more, there was a curious emptiness in our celebrations. Oh yes, the verdicts and settlements provided satisfaction - but I couldn't help noticing that none of us seemed as happy as we had been in earlier days. The money generated friction, like a giant weather system passing across the sky, spawning little tornados of conflict. The issues were generally small, but they began to occur more frequently and they were almost always about money. Each of us, including me, seemed less and less appreciative of the comradery and contributions of others and more and more focused on personal needs and expectations. We were forgetting those little things that had made us close, like caring about each other, and helping and sharing. Now there was serious money around, and everyone was serious about it. This developing tension was palpable and bewildering but the pattern was hard to ignore. We had re-discovered the old axiom that money didn't buy happiness. Yes, there certainly was an emptiness in our celebrations.

In the fall, my family and I traveled to a friend's house in a rural, agricultural section of southern Dade County for Thanksgiving dinner. Early in the afternoon, our wives asked my friend and I to go to the local supermarket for some grocery items. The market was located in "town," a good distance by back road from my friend's remote homestead. My fancy car was a little out of place in the parking lot of the supermarket, whose clientele consisted mostly of migrant farm workers and laborers. Still, we parked amongst the beat up pick-up trucks, did our shopping and returned to his house with the groceries.

As we unpacked in the kitchen, we discovered that we had brought back an extra bag. It was filled with meats - steaks, chicken and ground beef. We checked our receipt and confirmed that we hadn't been charged for these items; we had been given a sack belonging to somebody else. We were anxious to watch football on TV and felt lazy about the long drive back to the market, but we knew we had to return the extra bag.

When we re-entered the supermarket carrying the sack of meats, we saw a small man standing at the front desk with his face buried in his work-weathered, sun-darkened hands. Next to him were two or three younger men who resembled him in dress and appearance. The clerk standing at the counter was the first to notice us and quickly said something to the group in front of him. When the older man dropped his hands from his face to turn and looked at me and the bag of groceries that I held, we could see that he had been crying. He knew right away what I was carrying and dashed quickly to us. I handed him the bag, and he turned and handed it to one of the younger men. Then he got on his knees and took my hands into his own. He spoke between sobs and told me, as best I could make out in my imperfect Spanish, how he had spent his entire paycheck, all the money his family had, to buy a special meal for Thanksgiving. They were planning to celebrate the "success" they had found in America, working hard in the fields but earning wages which were lavish compared to anything they could earn in their native land. Theirs' was to have been a joyful feast - a genuine expression of gratitude for things we my friend and I had come to take for granted. However, when they got home from the store, they found that the bag with all the meat items was missing. They drove back to the supermarket, praying all the way, and now he was urging the Lord to bless us, and our families, for restoring his family's Thanksgiving.

Afterwards, as we returned to our families, our hearts were filled with a happiness that was pure and boundless. We gathered around my friend's beautiful dinner table and the array of our blessings was so much easier to see. The story of the grateful man made us all feel good and reminded us that to human beings, happiness comes more from the good things we do for each other than from the money we might possess. And, no, there was no emptiness in our celebration that night.

Copyright 2003-2003 Jack Sobel

Here are 10 important defensive driving tips:

1.) Allow enough space between your car and the one ahead of you. Four out of ten accidents involve rear-end collisions, many of which could have been avoided by simply following at a safe distance. Tailgating is very dangerous. Remember, at 60 miles an hour, your car will travel 90 feet in one second and it usually takes at least 2 seconds just to start reacting!

2.) Look around and ahead. It's always a good idea to scan the road and surrounding areas a few hundred yards ahead for potential hazards. Look around on both sides, and keep your eyes open for approaching vehicles, pedestrians (especially children) or animals that might enter your path.

3.) Have an escape route. Check your mirrors frequently to see what's beside and behind you. Think about where you could maneuver safely to avoid an accident.

4.) Don't depend on other drivers. Be considerate of others, but look out for yourself. Don't assume that other drivers are going to do what they're supposed to do. Be ready for the other driver to stop suddenly, to cut you off, or to turn without signaling.

5.) Keep your speed down. Remember that the posted limit applies to ideal conditions. You are wise to decrease your speed if conditions aren't ideal.

6.) Avoid distractions. Keep your ears on the road, too. Save cell phone conversations for another time. Don't change radio stations while driving. Safe driving is a full time job.

7.) Avoid frequent lane changes. Try to maintain a speed that keeps you in the flow of traffic. Every vehicle has a blind spot, which makes lane changes dangerous. Don't just rely on your mirrors. Make sure to check before changing lanes.

8.) Keep right except to pass. On multi-lane roads, it is important not to impede the free flow of traffic. Cruising in the left lane frustrates other drivers and causes them to tailgate and pass on the right.

9.) Use lights and signals. Use your headlights in dim daylight, rain or other reduced visibility conditions and always signal your turns.

10.) Keep a proper driving position. Maintain a comfortable, upright driving position, with both hands on the steering wheel. This will put you in better position to react to emergencies.

Our firm has been advising clients on safe driving issues for more than 25 years. Jack Sobel is the partner at FWD who has specialized in auto accident and other personal injury cases for more than 28 years. He is Board Certified by the Florida Bar in Civil Trial Practice and enjoys the highest rating (AV) afforded by the national legal rating publication, Martindale-Hubbell. He would prefer that you avoid an accident whenever possible. However, if you are injured in an accident , please feel free to call Jack Sobel to schedule a complimentary conference.

There has been some discussion lately covered by the press concerning Florida's homestead law. The State actually has two unrelated set of laws concerning homestead.

The first set of laws, mainly set forth in the Constitution of the State of Florida, provides for protection from most creditors for property that is homesteaded. While there is no cap on the value of the property that can be homesteaded, there is a limit that only a half acre within a municipality and 160 acres outside a municipality may be homesteaded. There is no filing requirement to claim this type of homestead, although there are documents which can be filed to substantiate that a certain property is to be considered homestead.

The second set of laws concerns an exemption of $25,000 in the assessed value of homestead property for purposes of ad valorem property taxes. While the current dollar amount of the exemption provides a reduction of around $500 of yearly property taxes, the greater benefit has been that yearly increases to the assessed value are limited to the lesser of 3% or the rate of inflation. Unlike the homestead provision concerning protection from creditors, the homestead exemption does require an initial filing with the County Property Appraiser and proof of residence in order to qualify. There is no limit to the size of the property for which the exemption can be claimed, and adjacent parcels can be combined with the homestead.

The homestead exemption can be lost, and thus the cap limiting increases waived, if the owner no longer resides on the property. Actions by the homeowner which may trigger losing the homestead exemption include renting out the home, obtaining a homestead on another property within Florida or another state, or leaving the home with no intention of returning to reside there.

There are various statutes and appellate cases concerning homestead which need to be reviewed in regard to particular factual circumstances. The above is a general description regarding homestead and should not be taken as legal advice.

In case you had the idea that the law is boring, or judges don't have a sense of humor, we're sharing the following decision:

Avista Management, Inc. v. Wausau Underwriters Ins. Co.

United States District Court,M.D. Florida.

AVISTA MANAGEMENT, INC., d/b/a Avista Plex, Inc., Plaintiff,
v.
WAUSAU UNDERWRITERS INSURANCE COMPANY, Defendant.

June 6, 2006.

ORDER
This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion-the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts-it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED.

P.S. To make matters worse, the lawyers involved had offices in the same building!

It is very probable that at some point in your life, the services of a good contractor will be needed. While many of us still have damage from previous hurricanes, and others are just looking to remodel our homes, finding a reputable contractor does not have to be intimidating. Here are some tips for hiring a contractor, who will professionally take care of all your repair needs:

1.) Speak with friends or neighbors. Odds are they have used or know a great contractor. Check with the Better Business Bureau at www.bbb.com.

2.) Get more than one bid, especially if it is for a big job;

3.) Ask for additional references from the contractor, and inquire as to the type of jobs the contractor normally performs;

4.) Confirm that the contractor is licensed. This can be done by going to www.myfloridalicense.com.

5.) Make sure you execute a written contract. You want to ensure that the work is done properly and in a professional manner, and the contractor wants to make sure that he or she is paid; a 'bare bones' contract will not protect you or the contractor. This is where an attorney can help draft or explain a contract, so that you can be confident that you are entering into a fair deal with the contractor;

6.) Don't pay for work that has yet to be performed by the contractor. Make payments as the work progresses;

7.) Confirm that the contractor has worker's compensation coverage. You can do this by requesting a certificate of insurance from the contractor. It protects you if an injury occurs on your property.

Hiring the correct contractor for your job and entering into a written agreement will help relieve headaches and prevent the need for additional repairs in the future.

In December, we held our open house in conjunction with the Martin Arts Council's First Thursday. The First Thursday Event started in October and is Martin County's largest gallery event. It features over 25 galleries, receptions, music and artists at work. At FWD, the night took an artistic focus in every possible detail. Flutist Lindsay Hager (dressed in a self-created wearable art piece) accompanied by Dr. John Enyart on the violin performed classical music in the spacious lobby area, welcoming guests after a long day at work or about the town. Catering provided by Elegant Edibles White Glove Catering was a feast for the eyes as well as the palate. Original works were on display by eminent local artists Kevin Hutchinson, Julia Kelly and Kim Rody.

In February, SailFish Arts, Stuart's ArtsFest, celebrated its 20th anniversary and FWD was proud to be one of the SailFish Arts Festival Sponsors, as well as exclusive sponsor of the 20th Anniversary Celebration.

This year's SailFish Arts poster was designed by renowned artist and children's author, Janeen Mason. New and creative elements of the festival included the three-day Plein Air (open air painting) event held before the festival and the SailFish Arts site designed with the advice of Feng Shui expert, Darley Davies. Award winners included Richard Ryan who received best in show. For more information on SailFish Arts and other fabulous events organized by the Arts Council, visit their website: www.martinarts.org.

Rob and Sue have been married for 12 years with two minor children. After a year of marriage counseling, Rob and Sue decided that divorce was their only option. Both Rob and Sue's parents had divorced during their childhood. Both remembered their respective parents engaging in a long and expensive battle. Because of this, Rob and Sue wanted to avoid litigation. However, they did not know how they could resolve their issues while avoiding a battle which they feared would hurt their children and drain their savings. Rob wanted the house sold; Sue wanted to stay in the home until the children graduated middle school. Rob and Sue also could not agree on a time-sharing visitation schedule for their children.

Mediation may be their alternative to litigation. Family/divorce mediation is a process designed to assist individuals who are separating, divorcing or dealing with issues after divorce, to negotiate an acceptable agreement. It is an informal, confidential and non-adversarial process for resolving disputes. The advantage of mediation is that it is generally less expensive, allowing the parties to create solutions best suited for their individual situations. Mediators work with both parties to resolve the parties' issues which may include custody, visitation, child support, alimony and the division of assets and liabilities. Unlike a judge or arbitrator, a mediator does not decide the facts of the case or outcome, but rather is a facilitator of communication and negotiations.

In Florida, an individual who proceeds with mediation without legal counsel has ten (10) days to review the agreement with an attorney. If after a consultation with an attorney, a party believes

the mediated agreement is not in his or her best interest, an objection can be filed and the agreement becomes null and void.

Here at Fox, Wackeen, Dungey, Beard, Sobel, Bush & McCluskey, LLP, Vicki J. Junod is a Supreme Court Certified Family Mediators available to mediate family/divorce disputes. In addition to representing clients during mediation, Attorneys Deborah Beard, Board Certified in Family and Marital Law is available for consultations prior to or after mediation to educate clients about the law and their legal rights.

Homestead property in Florida is unlike any other asset in your "portfolio" in terms of how it passes upon your death. In Florida, there are two principal rules that restrict the right of a homestead owner to freely devise or "pass on" his or her homestead: First, if the owner dies and is survived by a minor child, regardless of what the owner's will or trust provides, the homestead will go to the surviving spouse and he or she has the right to possess and live in the homestead during his or her lifetime and then it passes to the children.

Second, if the owner is survived by a spouse but no minor child, the homestead again passes directly to the surviving spouse, and any attempt to devise the homestead to anyone else is null and void (Creditors cannot get the home).

If a person is not survived by a spouse or a minor child, then the homestead is able to be transferred to whomever the executor of the estate chooses.

In addition, if (i) the person is survived by any "heirs-at-law" (a key statutory term that includes a fairly wide range of family members) and (ii) the person devises his or her homestead to any one of those heirs, then the homestead is not subject to the claims of creditors of the person's estate. Instead, the homestead property becomes the property of the heir, although the Probate Court must issue an order stating this.

A Florida Supreme Court case recently confirmed another nuance of Florida's homestead laws when a homestead owner is survived by an heir but no spouse or minor child, and the person's will provides for certain specific cash bequests:

In the case of McKean v. Warburton, the decedent, an unmarried and childless Florida resident, devised $150,000 to his nephew in his will and passed his "residuary estate" (i.e., his remaining assets) to his half-brothers. Because the decedent's homestead was not specifically mentioned in his will, it became a part of his estate. Unfortunately for the nephew, however, there were insufficient estate assets to satisfy the $150,000 bequest. Naturally, the nephew argued that the proceeds from the sale of the homestead ($141,000) should be used to satisfy the bulk of the $150,000 bequest. However, the court disagreed and held that those proceeds were protected. This could have been avoided if the will was properly worded to allow that the proceeds of the sale of the homesteaded property be added to the estate.

Florida's laws concerning the homestead are complex, and, as such, are a potential source of much controversy. If you have any questions about how your Florida home will be administered and distributed upon your death under your current estate plan, we would be happy to meet with you and discuss them.

The Plaintiffs were the three adult children of a wonderful lady who had been a Ft. Pierce resident for more than 10 years. We'll call her Mrs. T. When Mrs. T died on December 28, 2004, her children made funeral arrangements with a company that operates funeral parlors in several local communities, including Ft. Pierce and Stuart.

After a funeral Mass that Friday December morning the Defendant took Mrs. T's remains to its crematorium facilities in Stuart. Sometime after the cremation, the Defendant's Senior Location Manager telephoned one of Mrs. T's children and said that there had been "a problem."

From testimony provided by the Defendant's employees, it appeared that evidence of the "problem" was first discovered by the manager two days before the cremation. The next day, another funeral home employee also noticed it. He reported it to the funeral director in Ft. Pierce but didn't mention it to the Stuart manager until Wednesday. By that time, the cremation process had started. No photographs were taken, no written description was put into the defendant's records and Mrs. T's family was not notified until after her cremation. Mrs. T's daughter alleged that the Defendant's representative described the problem as "a very noticeable lesion" on Mrs. T's face. She alleged he told her he believed it had been caused by vermin and that there was evidence of droppings on the body. The children were horrified, disgusted and sickened. It should be noted that the family had an available burial plot in New York, but Mrs. T had repeatedly advised her children that she did not want to be buried because she was frightened of being eaten by bugs in the ground.

The children brought suit, and claimed that the desecration of their mother's remains should have been prevented. They also complained of the Defendant's failure to notify them before the cremation as well as its failure to photograph or otherwise document the damage. They claimed their sleep was disturbed by nightmares and they suffered with guilt, stress and anxiety. They asked for compensatory and punitive damages.

The funeral home was vigorously defended by the Miami office of a very large law firm. Nonetheless, the family was determined to seek justice in honor of their mother's memory. They wanted to do what they could to make sure that no other family would have to go through the same hurt they did. The story was broadcast on television and reported in the newspaper. The Defendant made changes in its policies geared toward preventing a recurrence of these events and the case was resolved.

Our civil justice system provides a method for mutually acceptable conflict resolution, and is by far and away the best system in the world; but people have the misperception that people sue for no reason and that juries just give away piles of money to undeserving "claims exaggerators." Having tried cases for both sides, plaintiff and defendant, for 30 years, I know that is simply not true.

Juries almost always do the right thing. And because they do, and because the lawyers know they will, cases get settled. And settlements serve society very well. The peaceful resolution of disputes amongst its citizens is fundamental to an orderly and stable society. Both parties receive a significant benefit from settling. The party that did wrong pays restitution to the victim and feels better for it. They made a mistake, someone got hurt, but then they did something to make up for it.

On the other side, the victims of the incident start out angry and frustrated. Their closure comes from having the person or corporation that harmed them pay for it. Accountability and personal responsibility are themes that have always been part of "justice" and are well regarded across the widest political spectrum. A civilized justice system cannot rely on "an eye for an eye" -the cycle of revenge brings no peace to either side (consider the Middle East) . But there has to be some remedial action to serve the human need for fairness, which is where the concept of money damages came from.

The American system of civil justice encourages people and corporations to use care for the safety of others by holding them accountable to those injured by their carelessness. It gives the victim something to make up for his loss. The system works and justice is done.

It is very probable that Technology has brought many wonderful changes to our world, but those changes are also accompanied by increasing obligations in the legal arena. Prior to the commonplace usage of computers and e-mail as a prevalent means of communication, discovery in court cases usually pertained to those items which clients maintained within their file cabinets at their home or office, i.e., paper or hard copies of documents. This is not the case today. Under the rules of discovery and recent court decisions, parties to a lawsuit can also be required to turn over files and correspondence kept on their computers; regardless of whether such items were ever printed. Clients should be mindful of this obligation and take steps to ensure they are providing their attorneys with all items that are relevant in a lawsuit, including documents, files and correspondence maintained solely on computers. Failure to do so can have adverse consequences in a case, including having the case decided against you. By taking the time and effort to gather these materials and provide them to your attorney early on in your case, you can try and avoid these adverse consequences.

What recently transpired with the Orlando Magic and the furor it created in the sports world and mainstream media is absolutely unique. It's true that the media tends to beat things to death for the sake of sensationalism. But, in fact, non-compete agreements are increasingly part of the business environment.

Legally, what is interesting about the Billy Donovan saga is that there is evidence that Billy Donovan actually suggested the terms of the agreement as a compromise. While courts disfavor agreements in restraint of trade, employee non-compete agreements are upheld routinely provided they meet certain criteria.

As a general rule, at least in Florida, to be enforceable in Court the non-compete need to be reasonably limited in three areas, 1) time, 2) scope and 3) geography. What we know about the terms is that they were for five years and involved only his ability to be a head coach in the NBA, rather than coach "basketball". Based on those being the sole terms, a few thoughts on each area are set forth below.

Time: Objectively, the time period of five years is the same period for which the contract was supposed to run. Ask yourself the question, is that reasonable? Most would probably say yes.

Scope: The scope limitation appears to be very reasonable. It is limited to the NBA. It does not limit his ability to coach in the State of Florida at any other level, to coach in any other professional or amateur capacity or even his ability to be employed by another NBA franchise in some other capacity than head coach. It is therefore likely that this is a reasonable limitation in scope.

Geography: This limitation goes hand in hand with the scope limitation. Again, it is focused on the NBA. So the geography would be limited to the NBA cities. This does not therefore appear to be an impediment to enforcement.

In summary, the non-compete that Billy Donovan signed is much like the shoes and the Wizard of Oz. Let's hope the Court's aren't called on to decide whether or not the agreement is enforceable.

If, like myself, you are the parent of college age (or older) children,  you know the mixed emotions that you experience in their transition into adulthood.  While there is pride and excitement for all they have to experience, it is not always easy to take the supporting role in all of the important life decisions they will be making.  Because young adults think that they are invincible, one thing that they will not be anticipating at this age, in all likelihood, is the need to have a plan for making medical and financial decisions should they become incapacitated.

While your child will always be your “little boy or girl,” the truth is that once a child turns 18, the natural parents no longer have authority over their child’s financial or medical decisions.  If you and they are fortunate, perhaps the only time you will run into this is when you receive a bill from your child’s college clinic for some routine, though undisclosed medical matter, and while you may, ironically, be the designated party for payment, you are unable to get any information regarding the reason for the visit or the medical status of your child.  On the other end of the spectrum, hopefully none of us will ever be in the position of the distressed parents and other family members of some of the students at Virginia Tech University.  They were unable to get information about their loved ones, since the medical providers were unable to disclose a patient’s information to anyone else, even the patient’s parents, or suffer harsh penalties under the Health Insurance Portability and Accountability Act. 

While it is frightening to even think that we could ever be in such a situation, it is prudent for   us as parents to address it.  Even I, as an attorney, had not considered this situation until I heard of the difficulties faced by the VTU students’ family members.  I have since consulted with the estate planning attorneys at our firm and will have my adult children create a Durable Power of Attorney and a Health Care Surrogate Form designating me as their Attorney-in-fact and Surrogate to make financial and health care decisions should they not be able to do so themselves.  I will also ask them at that time whether they want to execute a Death with Dignity Agreement (Living Will).  (If they are not comfortable providing a financial Durable Power of Attorney, the document can be signed and held in escrow until the child authorizes its release or a physician indicates that the child is not capable at that time to make financial decisions due to medical conditions.)

Once our children do their own planning, they will decide on whether to designate their spouses (if any), friends or family as decision makers.  However, generally a number of years go by between attaining 18 years of age and the time that a young adult considers the importance of these types of matters.  That is why we, as their parents, can offer an alternative to a situation that otherwise would require the delay and expense of court action if these documents are not in place.  I encourage you to think about this potentially critical issue, and review it with me or one of our estate planning attorneys, M. Lanning Fox, Richard J. Dungey or T.J. Heinemann.  It would be an excellent time to review your own medical  and financial directives as well.

I love my pet just as much as the next person (a Golden Retriever named Boots) but do you love your pet enough to leave him 12 million dollars?  That is just what Leona Helmsley did for her eight-year-old Maltese dog named Trouble.  

Ms. Helmsley was a real estate mogul, best known as “The Queen of Mean” for the way she treated her employees and ran the Helmsley’s multi-billion dollar real estate empire, which included several hotels and even the Empire State Building for a period of time.  Ms. Helmsley is also known for her 18-month jail stint for tax evasion, where Ms. Helmsley was famously quoted as saying “only the little people pay taxes.”

But why would she leave 12 million dollars to Trouble for his care and feeding?  It’s not like she thought it was important to take care of two out of her four grandchildren, whom she disinherited.  I guess we will never know.  Maybe she just really wanted to make sure that her dog was taken care of after her death, and telling a friend to watch over Trouble was not going to allow Ms. Helmsley to rest in peace.  Personally, if anything happened to me, I feel pretty safe leaving my dog with a friend, who is also a dog lover. 

But for those individuals who are afraid that a friend will not provide for their pet in the opulent manner that the pet has grown accustomed to, a properly drafted trust agreement will ensure that your pet is taken care of according to your wishes.  While Ms. Helmsley’s  trust for her Maltese is governed under New York law, where she was domiciled upon her death, Section  736.0408, Florida Statutes,  allows a trust to be created for the care of an animal in Florida.   This statute is relatively new in Florida, only going into effect on January 1, 2003.  While there is little case law that discusses the pet-trust statute, it appears to provide ample care for your pet, even allowing the court to appoint a person to enforce the terms of the trust, ensuring your pet will receive the treatment that you desired.

The only ‘drawback’ of the statute is that you must be careful about how much money is left for your pet.  If the Court determines that the value of the trust property exceeds the amount required for the intended use of the property (e.g., the care and feeding of the pet), the property that is not required for the intended use will be distributed to the settlor, if then living, or to the settlor’s estate.  Therefore, if the trust for Ms. Helmsley’s Maltese dog was governed by Florida law, the court would distribute the ‘excess’  trust property to Ms. Helmsley’s estate, unless of course,  the Court thought that an eight- year-old Maltese dog would require 12 million dollars for its care and feeding.

So, I guess I should start saving my money so that I can take care of my pet in high style when I pass away, but until then, I think I will just give my Golden Retriever a bone.

No business owner wants to break the law, especially when it comes to paying employees.  But many people  don’t actually understand the Wage and Hour provisions of the Fair Labor Standards Act. 

The first thing any business owner should understand is that these laws are minimum requirements;  that is, you can never do less than the law requires. 

    1.  Minimum Wage:  Federal Minimum Wage was recently raised to $5.85 but you must always follow the more stringent of the state or federal law, and Florida Minimum Wage  is currently $6.67 per hour.

    2.  Pay at one-and-one-half time for any hours over forty worked in a single work week.  A work week can start on any day of the week, but must remain consistent from week to week.  You may be inadvertently failing to follow this minimum if you allow your employees “comp time” where they work extra hours in one week to use for time off the next week.  Except in the case of Public Sector Employers, the law and Department of Labor do not recognize comp time.  Time-and-one-half pay is not required in Florida for more than eight hours worked in a day, provided that the total for the week is less than forty hours.  Additionally, certain types of bonuses may affect the overtime pay rate.

    3.  Salaried employee exemption:   Many employers mistakenly believe that they can just pay an employee a  “salary.”  However, the FSLA has specific  requirements that must be met to consider an employee “exempt” and the employee is entitled to overtime pay if his or her job doesn’t meet the requirements.  If an employee makes more than $455 per week (not including board or lodging), supervises two or more employees and  has the authority to hire and fire (or make hiring/firing recommendations), he or she may legitimately be considered “exempt.”   A bona fide administrative employee can also be considered exempt if he or she meets the same salary requirements, performs office/non-manual work directly The first and best thing to do is to make sure that you are paying your employees according to the law.  Visit the Department of Labor website www.dol.gov for the full text of the Fair Labor Standards Act.  (One can also print free minimum wage posters from this site.)  Additionally, business owners should be sure to have up-to-date employee handbooks (including complaint procedures), job descriptions and accurate time and payroll record keeping. 

If you are a business owner and need advice on wage and hour issues or other areas of employment law, you may wish to schedule  an  appointment with attorney George W. Bush, Jr...

On your first meeting with a new attorney, he or she requests a non-refundable deposit.  This seems reasonable-you know that he or she will be putting in many hours on your case, and even if you should decide not to pursue it in the end, the attorney deserves to be compensated for his or her time. 

The Florida Bar recently looked at this issue and decided that many clients (and even some attorneys) found the current rules confusing.      The result was a change in rules, approved at the August 17 2007 Board of Governors’ meeting.  This change will take effect once the Florida Supreme Court has reviewed and approved the change.

According to the new rule, (4-1.5(e)), “A fee for legal services that is non-refundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee.  The test of reasonableness found in subdivision (b) above applies to all fees for legal services without regard to their characterization by the parties.”  The rule doesn’t require that the client sign a written document spelling out the terms of the fee.  A letter from the attorney outlining the pertinent information required in the rule will suffice. 

An additional change to the comments for the rule would also include a definition for retainers, flat fees and advances.  This change to the comments is meant to further clarify the intent of the rule.

A lot of drivers don't pay much attention to their automobile insurance coverages until AFTER they are involved in an accident. Unfortunately for some, it is then that they learn that they are not adequately protected. Having "full coverage" doesn't necessarily mean what you might think. "Full coverage" can mean only that the policy provides full coverage as required by Florida law, which is actually only minimal coverage. "Full coverage" can also mean coverage in all categories but this doesn't guarantee that the AMOUNT of coverage is adequate within each category. A policy may provide coverage with minimal limits which could leave you exposed to personal financial liability should you cause an accident that results in damages which exceed those limits. The insurance company will only pay the type of benefits for which you paid premiums, and will not pay for more than the limits of benefits called for in the policy.

Typically available coverages include those required in order to register a vehicle in Florida: property damage (if you cause an accident and damage someone else's vehicle) and "no-fault" or Personal Injury Protection (PIP) coverage (which pays 80% of your own reasonable and necessary medical bills and 60% of your lost wages arising out of an accident -regardless of who caused the accident).

Most people also elect to carry some Bodily Injury (BI) Liability coverage (which pays for pain and suffering to another person that results from an accident you caused). If you cause an accident resulting in injuries and did not have BI coverage, your driver's license could be suspended until you pay those damages out of your pocket. Other available coverages include Collision coverage (which pays to repair or replace your vehicle if it is damaged in an accident-regardless of fault), Comprehensive coverage (which pays for the loss of your vehicle or its contents due to theft), Medical Payments (MedPay) coverage (which covers the 20% of your own medical bills not covered by PIP), and Uninsured Motorist (UM) coverage (which covers your bodily injury, pain, suffering and disability if the other driver caused the accident and didn't have sufficient Bodily Injury (BI) Liability coverage on his or her policy). Insurance companies can sell these coverages with minimal limits (such as $10,000) or with limits ranging into the hundreds of thousands of dollars. Also available from most insurance agents or insurance companies are umbrella policies, which provide additional coverage (into the millions) above the limits of your automobile policy.

Perhaps the most poorly understood coverage, which happens to be one of the most important types to buy, is Uninsured Motorist (UM) Coverage. Florida law does NOT require a person to buy Bodily Injury Liability (BI) insurance in order to register a vehicle in Florida and statistics show that a very high percentage of drivers in Florida do not have BI liability insurance. This means that if you are permanently injured in an auto accident, there is a significant chance that the person who caused that accident will not have any insurance to compensate you for your bodily injury and the resulting pain, suffering and disability. That's why we recommend that all of our clients purchase Uninsured Motorist (UM) coverage with limits equal to their Bodily Injury (BI) Liability limits. This valuable coverage protects you and your family members living with you. The insurance agent is required to offer it to you when he or she sells you an auto policy and to have you sign a waiver of coverage if you decide not to buy it. We recommend that you squeeze your budget somewhere else so that you can afford to add it to your auto policy.

We also recommend to our clients that they review their auto policies with their insurance agents annually. It is important to understand all the different types of coverage available, and to keep asking questions until enough is known about each to make an intelligent decision about the types and amounts of coverage to buy. In general, the more coverage a driver has, the better he or she will be protected in the event of an accident. However, increasing the categories of coverage you have, or the limits of coverage, can increase your premium costs dramatically. These types of decisions require a careful balancing of cost versus benefit and are not to be made casually.

Our firm has been advising clients on auto insurance and liability issues for more than 25 years. Jack Sobel is the partner at FWD who has specialized in auto accident and other personal injury cases for more than 28 years. He is Board Certified by the Florida Bar in Civil Trial Practice and enjoys the highest rating (AV) afforded by the national legal rating publication, Martindale-Hubbell. He would much rather answer your questions about insurance BEFORE an accident occurs or the need to submit a claim arises. Please feel free to call Jack Sobel, or one of his assistants, Anita Thomas or Debbie Lockliear, to schedule a complimentary conference.