Tampa Tribune Quotes Anderson in Article About Relationship Between Lowry Park Zoo and Safari Wild

A Tampa Tribune article published last Saturday raised questions about the activities of the executive director for Tampa's Lowry Park Zoo in connection with his for-profit venture, Safari Wild.  According to the article, "Lowry Park Zoo is a nonprofit organization that has been funded with millions of dollars in taxpayer money. Safari Wild is a fledgling, for-profit business owned by [the executive director and a St. Petersburg veterinarian]." 

The Tribune reported that "a series of e-mail messages obtained by The Tampa Tribune shows that the zoo's paid administrative staffers have worked to promote and garner political favor for [the Executive Director's] private animal park, which is not open and remains mired in state and county permitting issues. It also appears that the zoo's staff has done work for Safari Wild without a vote of approval by the zoo's board." 

According to the Tribune:

"If the executive is using the zoo as a private pool of resources to develop a for-profit venture, without board approval, it could be improper, said Daniel Anderson of Tampa. Anderson and other attorneys for nonprofit organizations said the fact that the zoo receives taxpayer support amplifies the potential conflict.

Mr. Anderson expressed no opinion to the reporter covering the story as to whether the relationship is improper, only that board approval is required when a nonprofit executive director uses resources of the nonprofit for the benefit of his own for-profit venture.

This story points out the importance of disclosure, consent, and documentation with regard to the private activities of nonprofit executives. Executive Directors are stewards of nonprofit resources, and these resources should only be used for the benefit of for-profit concerns when:

1. The missions of the nonprofit and for-profit organizations are compatible:
2. The Executive Director has disclosed his/her self-interest in the for-profit venture to the Board of Directors;
3. The Board of Directors has voted to approve the use of nonprofit resources for the benefit of the for-profit concern; and,
4. The vote of the Board of Directors is recorded in the minutes of the Board meeting.

It is important to take each of the above steps before committing the resources of the nonprofit to the for-profit concern, otherwise nonprofit executives and board members may be subject to public criticism.  This is particularly true in cases where the nonprofit receives public funding.  Such activities might also jeopardize the tax exempt status of the organization, a factor which should be of critical concern to nonprofit executives and board members.

Who Woulda Thunk It: Experts May Be Biased?

The following is an article published today by Fastcase entitled: “Hot Tubbing” Steams Up the Courtroom." It points out that our adversarial system has its advantages, but the so-called "battle of the experts" is not one of them - at least not from the perspective of judges and juries. Perhaps it is time for us to consider a process by which we permit experts to arrive at a general consensus, much like scientists, rather than advocating a particular point of view. It is likely that the scientific approach to revealing "the truth" will likely be more productive, and less costly, than the approach that we employ now.

As American judges are growing increasingly frustrated with partisan expert witnesses, some are looking to a method of testimony newly employed in Australia, coyly dubbed "hot tubbing." Sadly, this does not involve an actual hot tub, but a group discussion between experts to review conflicting evidence and judgments in the courtroom, a system which some believe has promise in the United States.

Like most other English speaking countries, the U.S. follows the tradition of allowing opposing sides in a trial to select their own witnesses. These experts have been known to exhibit bias in favor of their employers, often resulting in the presentation of entirely contrary evidence from the prosecution and defense at trial. In the majority of common law countries, judges are well-equipped to sift through conflicting facts. However, in the U.S., where juries sit in judgment for civil cases, disparities in testimony can confuse unfamiliar jurors, making reform all the more essential. While American judges often have the power to appoint their own experts, judges often waive their right out of general distrust of expert witnesses. According to Oscar G. Chase, a professor of law at New York University,

"Many judges, if not most, have been trial lawyers, and they are suspicious that any expert is truly neutral. The virtue of our system is that it allows people to sort of balance things out."

Australia, where the defense and prosecution also enjoy the power to appoint witnesses, has tried to inject more fairness into the process by creating a courtroom conversation between the specialists from both sides. Hot tubbing in the land down under involves a debate between the parties over contradictory evidence and conclusions, providing a space where the two sides can reach an agreement on some issues, and elucidate their differences on others. Critics caution, however, that scientific disputes can be bitter and often difficult to resolve, and arguments may lead to further disorder during trial.

But, while one supposedly neutral expert may gloss over real disagreements in the scientific community, the hot tub model can collaboratively incorporate the opinions of all sides, and ideally, reach a consensus. Not to mention the fact that it sounds a heck of a good time.

11th Circuit Says Car Rental Companies Cannot Be Held Liable for Negligent Acts of Renters

The 11th Circuit Court of Appeals (the federal appellate court governing appeals in Florida) ruled yesterday that recently enacted federal legislation known as "the Graves Amendment" (49 U.S.C. § 30106) preempts state tort claims against car rental companies under a theory of vicarious liability.  In English, what the Court said was that the statute passed by Congress, and signed into law by President Bush in 2005, prevents a plaintiff from suing a car rental company for "negligent entrustment" of the vehicle to a person renting the car.  Thus, if the car rental company rents the car to someone that is later found to be at fault in an accident, the car rental company cannot be held liable for renting the car to the person that caused the injuries even if the company knew or should have known that the driver had a bad driving record.

 

Critics of the Graves Amendment claim that the law provides too much protection to car rental and leasing companies, and such companies should be held accountable for placing a vehicle into the hands of a dangerous driver under the "dangerous instrumentality doctrine."  According to these critics, leasing companies in particular do little to ensure that a driver has a safe record before leasing a vehicle to a driver.  Others argue that the law should shield car rental and leasing companies against liability because these companies cannot always know if a driver is safe.

 

Given the rancor over this particular law, it is likely that this or another case will reach the United States Supreme Court.  Whether the Court will hear the case is another matter.

 

Case: Garcia v. Vanguard Car Rental USA, Inc., No. 07-12235, (11th Cir., Aug. 19, 2008).

11th Circuit Rules On Florida Pledge of Allegiance Case: Students Must Recite Pledge But May Remain Seated

The Eleventh Circuit Court of Appeals issued a ruling yesterday in which it held that a portion of a Florida statute requiring students to participate in the pledge of allegiance is unconstitutional, but that the remainder of the statute may be enforced.  Many people would be surprised to learn that Florida even has such a statute.  It is known as "Florida’s Pledge of Allegiance" statute, and is found at section 1003.44(1) of the Florida Statutes.   It applies to students at all grade levels from kindergarten through 12th grade, and states (in pertinent part):

The pledge of allegiance to the flag . . . shall be rendered by students . . .The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. When the pledge is given, civilians must show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes . . . .

The Court addressed the underlined portion of the statute above and found that the language requiring students to stand at attention is unconstitutional based on their First Amendment right not to "speak."  However, the Court did not find it unconstitutional for students to be required to participate in the pledge while they are seated absent a "permission slip" from their parents.

 

The end result is that students may be required to recite the pledge of allegiance while they are seated unless the student provides his/her school with a written request from the student's parent to be excused from reciting the pledge.  While this approach may seem hyper technical, it does have some merit.   A factor not considered by the Court is the disruption in the classroom that might be caused by students that choose to exercise their right not to recite the pledge without parental consent for no other purpose than to prove they can. 

 

The simple truth is that we have already tied the hands of educators in many important respects and teachers now find it difficult to maintain order in the classroom as a result.  Savvy students know how to invoke their constitutional rights, child protection statutes, and other rules in order to exert control over classroom teachers to the detriment of other students.  While it is important to ensure that students receive protection from constitutional safeguards, it is also important to ensure that our teachers are not handicapped in the process of educating our children.

 

In this case, the Eleventh Circuit got it right, but not necessarily for the reasons cited in its opinion.   

 

Case: Frazier v. Winn, No. 06-14462 (11th Cir. July 23, 2008).

 

Times They Are A Changin'

The American Bar Association reported today in two separate articles that a group of lawyers is starting a "virtual law firm," while law firm giant Holland & Knight is now offering discounted fees coupled with "success fees" if the firm wins their cases. The "virtual law firm" will employ lawyers who work at home, saving on overhead and costing clients less in legal fees. According to the firm founder, Craig Johnson, the typical large law firm business model, which includes high associate salaries, prestigious offices and billing rates as high as $800 an hour, is “a situation that can’t continue.”

The action taken by Holland & Knight seems to support this hypothesis. "The days of partners 50 and older playing golf on Wednesdays are long gone," said Steven Sonberg, H&K's new managing partner. The two articles reflect a common reality: clients are demanding that the legal profession lower fees and develop innovative approaches to the practice of law, including billing arrangements, in order to remain profitable.

The sophisticated, internet savvy, clients of today no longer care about or want the mahogany lined walls and luxurious trappings associated with traditional "big box" law firms. What clients want are results at a lower price. The only way to accomplish that objective is for the legal profession to engage in a fundamental shift in the way that legal services are delivered to clients. It is refreshing to see that other lawyers and law firms are beginning to recognize this fact, and adapt to the "next generation" approach to the practice of law.

Something We Can Agree On: Passage of Medicare Improvement Act Is "Good Medicine" for Everyone

Last night, the United States Senate approved the Medicare Improvement Act for Patients and Providers (H.R. 6331) by a vote of 69 to 30. In an important demonstration of bipartisan support for the measure, 18 Republican Senators joined with Democratic Senators in voting to approve the legislation. The House of Representatives had previously approved the legislation by a vote of 355 to 59. The legislation now moves to the desk of President Bush, who has said that he "strongly opposes" the bill. The good news is that the bill will likely be enacted even if President Bush exercises his veto power because the necessary majorities in both houses of Congress have pledged their support.

If enacted, H.R. 6331 will reverse the 10.6 percent cut in Medicare payments to healthcare providers became effective July 1, 2008, as well as the projected 5.4 percent cut forecast for 2009. It will also continue the 0.5 percent increase in payments for the remainder of 2008, and physicians would receive an additional 1.1
percent increase over 2008 levels in 2009.

Why is this important to consumers? Medicare pays hospitals, physicians, and other healthcare providers, for medical treatment needed by elderly and disabled patients, as well as military families and retirees that do not have private insurance to pay for such treatment. When Medicare reduces payments for legitimate claims, healthcare providers are forced to look elsewhere to cover the costs of providing medical treatment to these patients. Many private insurers have tied their reimbursement rate to the rates paid by Medicare, thus even private insurance pays less when Medicare pays less.

Additionally, hospitals and emergency room physicians are required to treat patients in hospital emergency rooms under EMTALA regardless of whether such patients have insurance. Thus hospitals/doctors are required to care for many patients who cannot pay for their emergency room treatment, and hospitals/doctors may not receive adequate reimbursement from Medicare if Medicare reduces payments for such care. The result is that patients with private insurance, and those that are "self-pay," wind up paying more for medical care in order to subsidize those patients whose claims are paid by Medicare, and those patients who are treated under EMTALA without any reimbursement to the hospital and/or physician.

Hospitals, doctors, and other healthcare providers have used this dilemma to justify caps on damages in medical malpractice lawsuits. The solution to ensuring that medical care is provided to those that need it is not limiting the damages available to victims of medical malpractice, however. While it is true that hospitals and doctors must cover their costs, including the cost of paying for medical malpractice insurance, it is unfair to shift the burden of loss to victims of medical malpractice merely because Medicare does not adequately reimburse hospitals/physicians, or because hospitals/physicians are required to treat patients under EMTALA without reimbursement.

It is unfortunate that the healthcare industry and the legal profession have not worked more closely together to resolve this problem. It seems that both have a desire to serve their clients, and yet neither is willing to work toward a solution that addresses both the economic needs of the healthcare industry, and the right to fair compensation for medical malpractice victims. One must wonder what might be possible if lawyers were willing to acknowledge that healthcare providers are entitled to be fairly compensated for the medical treatment of patients, and if healthcare providers were willing to acknowledge that patients are entitled to be fairly compensated for their pain, suffering, and disability, when a healthcare provider is medically negligent.

The truth is that neither healthcare providers, nor medical malpractice victims, should be required to bear the burden that we, as a society, place upon ourselves in ensuring that all Americans receive adequate medical treatment. The answer to this problem lies in a solution that provides adequate reimbursement to hospitals and physicians, while preserving the fundamental right of American citizens to seek redress in our courts for their injuries. The passage of H.R. 6331 is only one component of this solution. We need to look next toward increasing the reimbursement rates for Medicare, Medicaid, and other government funded insurance programs, as well as the reimbursement rate for private insurers, in an amount sufficient to cover the cost of medical malpractice insurance.

If we are unwilling, or unable, to pay for the costs associated with ensuring adequate medical care for all Americans, including the cost of ensuring adequate victim compensation, we face the risk of creating a disparity between the "haves" and the "have nots," e.g. those that have private insurance, and those that do not. It is unfair to require those who are able to afford private insurance to subsidize those who cannot by paying more for insurance and/or relinquishing their right to compensation for their injuries. Likewise, it is unfair to require hospitals and physicians to cover the losses they sustain when they underpaid by Medicare for a legitimate claim, or when they are not paid for the cost of treating a patient they are required to treat under EMTALA.

Should we choose not to properly fund medical treatment for all Americans, including paying for the cost of medical malpractice insurance, we will have to face, as a nation, the difficult decision of whether we are willing to require the "haves" to subsidize the "have nots" by paying more for medical care and/or giving up their right to fair compensation through limitations on medical malpractice damages. Alternatively, we will have to decide whether we are willing to tolerate a disparity between the "haves" and the "have nots," by affording greater protection to those who can afford to pay for it. Burying our heads in the sand, and hoping that the problem will just go away, is not an option.

New Filing Fees: The Cost of Justice Just Went Up

Effective July 1, 2008, new court filing fees went into effect in Florida state courts that make filing a claim, including a counterclaim or cross-claim, substantially more expensive in certain cases. Most notably, the filing fee for county court evictions increased from $80 to $270, a 238% increase. Additionally, there was previously no fee assessed for filing a counterclaim or cross-claim, but there is now: $295.00. This means that a defendant who wishes to "counter sue" a plaintiff must now pay slightly more than the plaintiff in filing fees in order to assert a claim against the plaintiff in the same lawsuit. It also means that landlords are likely to do more to try and resolve a claim before filing an eviction action against a tenant, or perhaps engage in "self-help" to ensure that non-paying tenants vacate.

This development is not surprising, given the lack of funding that has been provided to our state court system by the Florida legislature. It is also unlikely to curtail the filing of most lawsuits because, except in eviction cases, filing fees are not substantial enough to serve as a deterrent to filing suit. What is probably of greatest concern is that landlords may attempt to avoid paying the filing fees in eviction actions by taking matters into their own hands, and forcing tenants out by other means. If this occurs, we may see an increase in civil actions against landlords by tenants that claim the landlord violated Florida's landlord-tenant statutes by doing things such as turning off utilities, changing locks, or blocking access to rental units, all of which are prohibited.

There is no doubt that our courts need more funding, the state court system is already operating on a shoestring budget as it is. However, increasing fees is a short term fix to a long-term problem. Electronic case management and filing (ECMF), already being used by most federal courts, is a means by which we can reduce or eliminate the need for future rate increases. Once an initial pleading is filed, ECMF permits the parties and/or attorneys for the parties to file documents with the clerk of the court electronically, bypassing the need for the clerk's office to process the vast amount of paper that is being processed now. It also reduces the cost, and increases the speed, of litigation - a benefit to both plaintiffs and defendants.

The Florida State Court system is working on implementing ECMF, but again, the problem is funding. It amounts to a "chicken and egg" dilemma, where the State is required to invest money in order to save money. Of all of the worthwhile projects that deserve funding, ECMF should be at the top of the list. Perhaps when the new filing fees begin to impact the pocketbooks of attorneys and their clients, we may see a greater interest in addressing our court funding shortfall.