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.

Lawyers Should Take Note of Comments On Winters & Yonker Case

The local news media has recently given a great deal of coverage to a case involving two lawyers, Bill Winters & Marc Yonker, and their former employer, Richard Mulholland.  One article, published in the St. Petersburg Times last week, provided a detailed account of the allegations of “theft, sex and deceit,” at issue in the case.

 

As sad as the case may be from an ethical point of view, sadder still are the comments that viewers posted in response to the article.  One poster, “Jeff,” writes: “Lawyers are all a bunch of thieves just look who is running and ruining this country. It is all about how can you manipulate the law and make an obscene amount of money. Whatever happened to ethics??”  Another, “Tom D” writes: “Lawyers are born thieves.”  And yet another, “Jackie O” writes: “Ethical lawyers fall into the same category as jumbo shrimp, honest politicians or military intelligence. They do what they do best - find loopholes and lie with a straight face.”

 

Responses from those who appear to work in the legal profession sought in vain to defend lawyers.  One particularly ham-handed response stated: “To all you lawyer haters out there-I hope you never need the services of a good atty!This country was founded by lawyers-& the practice of law is an honorable profession. I've found that people who constantly attack attys are actually just jealous!” 

 

It is not new news that lawyers are often thought of as dishonest, unethical, and greedy.  Those are beliefs that have existed as long as the legal profession itself.  What should be of concern, however, is the fact that the resulting justice was overshadowed by the fact that the litigants happened to be lawyers.

 

The same story could have concerned the unethical practices of individuals in any profession, including doctors, architects, engineers, and accountants.  If that were the case, it is unlikely that those commenting on the story would have immediately jumped on the bandwagon to criticize the profession as a whole, not just the individuals responsible for the egregious conduct. 

 

But the fact that the story was about lawyers seemed to support or validate an already widely held belief that lawyers are essentially dishonest.  To that extent, the story was fuel for an already burning fire.  It is unfortunate because the vast majority of lawyers - including both plaintiff and defense lawyers - are highly ethical individuals that are horrified by stories such as this.  The question we must ask ourselves as lawyers is: why don’t people believe that?

 

Perhaps it is just human nature to categorize all individuals belonging to a particular group as being “evil” or “bad,” because it is easier to do so than to take on the more difficult task of evaluating each individual.  Stereotypes are a way of letting us off the hook for any responsibility that we might otherwise have for actually learning about an individual and determining whether or not the individual conforms to our stereotypical beliefs or not. 

 

It is, for example, easier to discount Barrack Obama based on an unsubstantiated belief that he is Muslim, and therefore “bad,” because all Muslim’s are bad.  It is human nature to take this path of least resistance, rather than perform even the most rudimentary research to determine whether or not Obama is actually a Muslim.  And forget about the added step of determining whether or not Muslims are bad - that is simply too much work.

 

The same could be said about those who would categorize John McCain as “another George Bush,” without: a) really knowing who George Bush is; and/or, b) taking the time and doing the work required to know whether it is actually true that John McCain is so similar to George Bush as to be “another George Bush.”

 

What it boils down to is that we are all inherently lazy when it comes to taking on the hard work of a critical analysis involving individuals that belong to an easily identifiable and popularly maligned group.  It is easier to simply define every member of that group by one easy to understand definition that requires little in the way of thinking or research. 

 

If you want an interesting exercise demonstrating this concept, answer the following: All men are ___________.  Chances are you thought of the word “dogs,” because the phrase “all men are dogs” has become so widely known that it evokes the same response virtually every time.   Advertisers have mastered this concept, but unfortunately, lawyers haven’t.

 

Rather than lament the fact that many people have a high disregard for lawyers and/or our system of justice, we should simply do a better job of educating society.   Imagine if lawyers throughout the nation focused on a simple repetitive concept that became so widely known that it was the first thing people thought of when they heard the word “lawyer”?   Sound far fetched? 

 

As a group, lawyers are notoriously unmanageable.  Perhaps it is ego, perhaps it is control, but the reality is that it would take a miracle to get lawyers to agree on anything nationwide.  Unfortunately, that miracle may come from an unlikely source: the American people.  There may come a day when Americans become so fed up with lawyers and our system of justice, that they decide to take things into their own hands and significantly modify our judicial system.  If that happens, lawyers may have no choice but to unite, or perish.

 

We should never forget that lawyers and our courts, even our United States Supreme Court, serve at the pleasure of the people.  We should do a better job of educating people about the good things that we do so that we will continue to have that honor.  If the comments in the Winters and Yonker case are any indication, “the people” do not currently believe that we are doing a very good job.  We might want to take note of that, and do something to change it, before we have little choice in the matter.