Deregulating Net Neutrality: The States’ Response

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By: Ellen Larson
Associate Editor, American Journal of Trial Advocacy

On December 14, 2017, the Federal Communications Commission (“FCC”), in an order titled Restoring Internet Freedom, set to be effective April 23, 2018, voted to reverse the regulatory approach it adopted in its 2015 order titled Protecting and Promoting the Open Internet.[1] Continue reading “Deregulating Net Neutrality: The States’ Response”

Frank v. Gaos: Is the Cy Pres Legal Doctrine Appropriate in Class Action Lawsuits?

Photo Credit: https://mashable.com/2012/12/09/apple-google-kodak-patents/#CB0topbhtuqV

By: Ellen Larson
Associate of Product Development and Marketing, American Journal of Trial Advocacy

          A case on the United States Supreme Court docket this fall is Frank v. Gaos.[1] Frank will address the appropriateness of a district court’s approval of settlement funds in a class action lawsuit against Google to go to non-party charitable institutions, rather than class members, under the cy pres legal doctrine.[2] Continue reading “Frank v. Gaos: Is the Cy Pres Legal Doctrine Appropriate in Class Action Lawsuits?”

Law Office Study Apprenticeship Programs: How Kim Kardashian Hopes to Become An Attorney

Photo Credit: Dave McNary, Alice Marie Johnson, Former Inmate Kim Kardashian Helped Pardon, Sets Movie, TV Deal, Variety (Feb. 6, 2019, 10:59 AM), https://variety.com/2019/film/news/alice-marie-johnson-kim-kardashian-movie-deal-1203130201/.
Kim Kardashian West with Alice Johnson, Former Inmate

By: Jean Talbott
Senior Associate Editor, American Journal of Trial Advocacy

Introduction

          Kim Kardashian has made media headlines yet again announcing her plans to become a lawyer.[1] Kardashian plans on accomplishing this goal through “reading the law,” which prior to 1870 was the only option for aspiring lawyers.[2] Kardashian attended Pierce College, where she completed 75 credit hours but did not finish college.[3] Continue reading “Law Office Study Apprenticeship Programs: How Kim Kardashian Hopes to Become An Attorney”

Litigation Watch in the Wake of Hurricane Michael

Photo Credit: Brandon Miller and Brandon Giggs, Michael the Strongest Hurricane to Hit the Continental US since Andrew, CNN (Oct. 11, 2018; 9.46 am) https://www.cnn.com/2018/10/09/weather/hurricane-michael-stats-superlatives-wxc-trnd/index.html.

By: Stephanie Smith
Member, American Journal of Trial Advocacy

Hurricane Michael made its way up the 14th Judicial Circuit on October 10, 2018.[1] This storm was the first Category 4 hurricane to make landfall in Florida’s Panhandle since 1851.[2] Top winds reached 155 mph.[3] Additionally, this was the third most intense hurricane to make landfall in the U.S. recorded history based on central pressure at 919 millibars minimum pressure.[4] To say the effects were devastating is an understatement; there were at least 72 fatalities, 57 of those in the United States.[5] Records show the storm had a high-water storm surge of 9 to 14 feet from Mexico Beach through the Apalachee Bay.[6] Total economic losses are estimated at approximately $25 billion.[7] These include privately insured wind and storm surge damage to residential, commercial, and industrial properties and automobiles.[8] Approximately a million customers in Florida, Georgia, Alabama, and South Carolina lost power.[9] Many community members went without power or internet for two months.

Courts and bar members alike went without roofs, water, electricity, internet, cell phone service for days after the storm.[10] Many of the law offices in downtown Panama City will be closed down indefinitely.[11]

The question is what affect has this storm had on litigation in the Panhandle? The Florida Bar Association is watching closely to keep up with the influx of litigation in the aftermath of Michael.  Many attorneys are offering services pro bono. The Florida Supreme Court recently stated in January that it would need four more circuit courts to keep up with the fiscal year 2019.[12] The dockets are expected to be most crowded with housing disputes, due process issues, and other storm-specific claims. 

Housing: Landlord-Tenant Problems 

According to executive director of Legal Services of North Florida, lack of housing is one of the biggest obstacles after Michael.[13] “Landlord-tenant, landlord-tenant, landlord-tenant” issues are creating a flood of litigation.[14]  Such disputes include tenants unsure of what to do with rental housing that is now inhabitable.[15] Another issue is that many tenants have lost their jobs after the storm and can no longer afford rent.[16] The most serious issues deal with the rate of evictions and spiked rent for undamaged housing, even when tenants have current leases.[17] A legal aid attorney reported that he had fifty eviction cases arise in less than a week just for one complex.[18] Many landlords have been posting eviction notices on their tenant doors, allegedly hoping the tenants will not understand the legal system enough to take them to court.[19]

Due Process for Inmates

The criminal court in Panama City returned to due process practices in the immediate aftermath of Michael unseen in decades.[20] For example, for ten consecutive days right the storm, Judge Thomas Welch met with inmates in the Bay County Jail, not the courtroom. He wore the only clothes he owned—a Polo shirt and flip-flops—rather than the traditional black robe.[21]  Neither the jail nor courthouse were spared from the storm, and by necessity, many procedures had to be adjusted.[22] Under normal conditions, the court would hold first appearances through video transmitted from the jail to the courthouse.[23] However, repairs at both locations made this an impossibility. Instead, inmates were subject to antiquated practices for first appearance hearings such as meeting with the judge face-to-face to hear and meet the charges against them.[24]

Judges, however, assured that meeting with inmates face-to-face like this did not unfairly or prejudicially affect the process of determining bond.[25] In an interview, Judge Welch said he still took into account factors such as circumstances of the arrest, the person’s residency, and criminal history.[26] The exception to this is that one factor missing from traditional procedures was the presence of the family in some cases. Families are typically able to be present as a support system for such bond hearings at the courthouse.[27] Many families were unable to be there, as the debris-filled roads made access unfeasible.

The entire court system was shut down for two days.[28] The jail was barely operational and had no power or running water.[29] No one could even get to the jail to check until the roads were cleared.[30] Massive crews of utility workers and jail personnel had to personally clear paths for generators.[31] While the inmate phone system was down for several days, Bay County Sherriff’s Office warden Maj. Rick Anglin said that they amazingly maintained the ability to post bond with “cash, money order, a cashier’s check or a family member [going] through a bondsman.”[32] The warden assured that the court has done everything in its power to ensure inmates receive due process.[33]

Another difference in the Bat County criminal justice system after Michael was that many people had storm-related causes or excuses for their arrest.[34] One of the main reasons for arrest was violation of the mandatory curfew.[35] For example, in one case a man drove from Bonifay into Panama City to make sure his family made it alive through the storm.[36] His car broke down, and as a result, he violated disaster curfew.[37] In another case, a man was robbed by the inhabitants of the house at which he was staying, and therefore had “no choice” but to be out after curfew.[38] A man arrested for domestic violence asked the court not to issue a “no contact” order because he did not want his partner to be left on the street.[39] He said his whole house got demolished, and they were both staying with his parents in temporary housing.[40]

Storm Specific Claims

There are many other cases arising from hurricane Michael. These include jumping through FEMA hurdles, foreclosures, bankruptcies, and private insurance claim problems. Within five months of the storm, 143,600 insurance claims had been filed with an estimated insured-losses of over $5.5 billion.[41] Other cases include parent-custody battles, where a parent is under an order not to leave the area but now need to relocate due to the loss of their housing or employment.[42] After even 6 months, there is still a lot of uncertainty as to exactly what the scope will be on litigation in the Panhandle when things settle down, though it is certain to be catastrophic.

Conclusion: The Recovery Response from the ABA

There are prolific needs in the 14th Judicial Circuit of Florida due to Hurricane Michael. However, the American Bar Association has responded positively to the hardest hit-areas, such as Bay County. The ABA President Bob Carlson went to Florida to investigate recovery efforts and aid in relief[43] Additionally, the Young Lawyer’s Division has set up a toll-free number for storm victims to call for legal help.[44] So far, there are over 196 volunteers.[45] Lawyers who would like to volunteer can contact the organization at https://www.lsnf.org/hurricane-michael/. To volunteer to do any pro bono through that agency, go to https://www.lsnf.org/sign-up/. There is still great need, and likely to be even more legal services required for years to come.  


[1] Assessing the U.S. Climate in 2018, National Center for Environmental Information (Feb. 6, 2019), https://www.ncei.noaa.gov/news/national-climate-201812.

[2] Id.

[3] Id.

[4] Id.

[5] Id; see also Olivia Michael, Hurricane Michael Death Toll Continues to Rise, WJHG (Jan. 11, 2019, 7:07 p.m.) https://www.wjhg.com/content/news/Hurricane-Michael-death-toll-continues-to-rise-504241911.html.

[6] Id.

[7] Supra note 1.

[8] Id.

[9] Id.

[10] Rawan Bitar, Hurricane Michael Wreaks Havoc: Florida Lawyers and the Court System Rally in Response, The Florida Bar (Nov. 1, 2018) https://www.floridabar.org/the-florida-bar-news/hurricane-michael-wreaks-havoc/

[11] Id.

[12] Lynn Hatter, The Florida Supreme Court Recommends Additional Judges for the Panhandle, WUSF News (Dec. 31, 2018; 12:23 p.m.) https://wusfnews.wusf.usf.edu/post/florida-supreme-court-recommends-additional-county-circuit-court-judges-panhandle.

[13] Gary Blankenship, The Needs of Those Affected by Hurricane Michael Are Still Great, The Florida Bar (Jan. 1, 2019) https://www.floridabar.org/the-florida-bar-news/the-needs-of-those-affected-by-hurricane-michael-are-still-great/; see also Federal Disaster Assistance Approaches $1 Billion for Hurricane Michael, 2019 WLNR 7945851 (explaining that nearly 2,100 households displaced due to Hurricane Michael are now staying in hotels provided by FEMA, and 760 families have received temporary housing units such as mobile homes and travel trailers. Additionally, over 7,800 temporary blue roofs were installed, though these are only short-term solutions for some with the housing crisis).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Blankenship, supra note 13.

[20] Zack McDonald, Hurricane Michael Changes Due Process for Inmates, The News Herald Reporter, (Oct. 27, 2018) https://www.newsherald.com/news/20181027/hurricane-michael-changes-due-process-for-inmates.

[21] Id.

[22] Id.

[23] See Fla. Crim. P. 3.310 (“Except when previously released in a lawful manner, every arrested person shall be taken before a judge, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest.”).

[24] McDonald, supra note 19.

[25] Zack McDonald, Hurricane Michael Changes Due Process for Inmates, The News Herald Reporter, (Oct. 27, 2018) https://www.newsherald.com/news/20181027/hurricane-michael-changes-due-process-for-inmates.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] McDonald, supra note 20.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] McDonald, supra note 20.

[38] Id.

[39] Id.

[40] Id.

[41] The News Service of Florida, Hurricane Michael Insured Losses Near $5.53 Billion, The Panama City News Herald (Feb. 7, 2019) https://www.newsherald.com/news/20190207/hurricane-michael-insured-losses-near-553-billion.

[42] McDonald, supra note 20.

[43]  Blankenship, supra note 13.

[44]  Id.

[45]  Id.

Who’s Paying? A Review of Rule 41(D)’s Authorization of Attorney Fee Awards

Image: https://silblawfirm.com/wp-content/uploads/2017/07/Recovering-Attorneys-Fees820x400.jpg

By: Will Johnson
Associate Editor, American Journal of Trial Advocacy

Federal Rule of Civil Procedure 41(d) governs situations in which the plaintiff voluntarily dismisses an action and subsequently refiles the same or similar case in a different jurisdiction.[1] In such situations, the rule permits the court to order the plaintiff pay all or part of the costs of the previously dismissed action.[2] Recently, an explosion of litigation concerning Rule 41(d) has left United States Courts of Appeals split on whether the rule allows for the recovery of attorneys’ fees as “costs” of the previously dismissed actions.[3] Typically, attorneys’ fees are not awardable as “costs” to the prevailing party under the so-called “American Rule” unless Congress has carved out an exception to the rule.[4] Notably, four different circuits have established strong stances on the award of attorneys’ fees pursuant to Rule 41(d) within the last two years after a sixteen year period of stagnation.[5] As a result, three prominent interpretations of Rule 41(d) exist, with three courts ruling attorneys’ fees are always awardable as costs,[6] one court ruling attorneys’ fees are never awardable as costs,[7] and four courts finding middle ground by ruling attorneys’ fees are awardable as costs if the underlying substantive statute of the action brought allows for the award of attorneys’ fees.[8] This article explores Rule 41(d) and its intent and provides a survey of each available circuit’s position of the award of attorneys’ fees as “costs” pursuant to Rule 41(d). Continue reading “Who’s Paying? A Review of Rule 41(D)’s Authorization of Attorney Fee Awards”

Attorney Advertising: You Get a Multi-Million Dollar Settlement! You Get One, Too!

Photo Credit: https://www.istockphoto.com/photo/falling-money-on-a-white-background-dollars-rain-3d-illustration-gm678604596-124542593

By:  Sara Rogan
Member, American Journal of Trial Advocacy

In the over 40 years since the seminal case of Bates v. State Bar of Arizona[1] in 1977, attorney advertising has been and continues to be revolutionized. What was once illegal is now prolific. It was estimated by Kantar Media’s Campaign Media Analysis Group that in 2016 alone, attorneys and firms spent almost $771 million on televised advertisements.[2] One firm is estimated to spend roughly $30 million annually on advertising.[3] The Institute for Legal Reform notes that “legal advertising not only appears to be recession-proof, but also politics-proof,” surviving and thriving in a time when other advertisement industries struggle.[4] A well-known Alabama attorney has at least 2,000 billboards employed for his advertisements throughout the state and is becoming a familiar face throughout the southeast.[5] Attorney advertisements take the form of billboards, commercials, displays on websites, and search engine prompts – not to mention all the paraphernalia that contains firm names and logos such as cups, koozies, pens, and notepads. The path is already being paved for attorneys to collect numbers from police reports to solicit their services to people involved in an incident.[6] Continue reading “Attorney Advertising: You Get a Multi-Million Dollar Settlement! You Get One, Too!”

Opportunity Hidden in the New Tax Law

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By: Alex Townsley

Benjamin Franklin has been credited with once saying, “[I]n this world, nothing is certain except death and taxes.”[1] Americans are reminded of the truth of the latter certainty every year during tax season, but this year, along with the usual pains of preparing one’s taxes, taxpayers are grappling with understanding the effects of the Tax Cuts and Jobs Act of 2017.[2] However, there may be some unexpected relief in the form of a new program called “[O]pportunity [Z]one[s].”[3] Continue reading “Opportunity Hidden in the New Tax Law”

Kavanaugh’s First Opinion: Further Solidifying the Federal Arbitration Act

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By: Nick Jackson
Associate Editor, American Journal of Trial Advocacy

Introduction

In January 2019, Brett Kavanaugh, a newly confirmed justice on the Supreme Court of the United States, delivered his first opinion, one that was unanimously confirmed by the Court.[1] In Henry Schein, Inc. v. Archer and White Sales, Inc.,[2] the Court overturned the Fifth Circuit’s interpretation of the Federal Arbitration Act, stating “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.”[3] In recent years, arbitration agreements have become a controversial aspect of the American legal system.[4] Accordingly, many individuals have brought forth challenges to contest unfavorable arbitration results.[5] One of the most criticized aspects of arbitration deals with forced arbitration agreements.[6] However, the controversial nature of arbitration agreements has failed to limit their use in industries where the use of arbitration is increasing such as the credit card, banking, insurance, and mobile phones services industries.[7] 

Continue reading “Kavanaugh’s First Opinion: Further Solidifying the Federal Arbitration Act”

302 Pages of Hope

“Hope is a good thing, maybe the best of things, and no good thing ever dies.” The Shawshank Redemption (Castle Rock Entertainment 1994).

Senior Research and Writing Editor: Amanda L. B. Wineman

302 pages. 302 pages is what it took District Court Judge Myron Thompson to fully explain his ruling in Braggs v. Dunn.[1] He wrote 302 pages detailing the inadequacies and failures of the Alabama Department of Corrections (ADOC) in providing mental health care to its prisoners.[2] In a multi-faceted set of cases, the Southern Poverty Law Center, along with attorneys from other Alabama firms, brought suit on behalf of a class of prisoners from fifteen ADOC facilities against ADOC.[3] The first phase involved American Disability Act (ADA) claims that ADOC discriminated on the basis of physical disabilities and that they failed to make accommodations for disabilities.[4] Continue reading “302 Pages of Hope”

Could Rondini Spark Reform for Rape Laws?

By Mallory Bullard, Senior Research and Writing Editor

Ask yourself, “What do rape cases have in common?” Many responses might be racing through your mind. You may be thinking of words such as: victim, consent, or maybe even force. While those words are all associated with rape cases, the uniqueness of the crime is a commonality that is often overlooked. Rape is distinguishable because “[n]o other violent crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality.”[i] Continue reading “Could Rondini Spark Reform for Rape Laws?”