Lake Legal News A Quarterly Magazine
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Oyez! Oyez! It’s “Law Day” (2016) L a ke L
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Legal News Meet A Paralegal:
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In this Issue we highlight Michelle Adkins, a Fla. Bar registered paralegal, working at a firm in Leesburg, Florida.
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Did you realize that it can take as many as ten years to build a brand? Our advice? You'd better start now! A recent luncheon was held in Tavares, Florida, to host three visiting Fifth District Court of Appeal judges. Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News. Long-time prosecutor John Carnahan retires on a high note, and has a little fun with our magazine on his way out of town... picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!)
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This year we have given “Law Day” the full front-cover treatment. The annual luncheon included a brand new award—the first annual “Teen Court Award” (to Connor Jenkins)!
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Lake Legal News May 2016
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Lake
Legal News
Publisher / Executive Editor James Hope, J.D. Website:
www.AttorneyJamesHope.com
Associate Editor Marilyn M. Aciego Contact:
LakeLegalMarilyn@Gmail.com
Official Photographer Bonnie Whicher Website:
www.BonnieWhicherPhotography.com
Official Webmaster Kevin Robson Website:
www.BusinessMasters.net
Advertising James Hope, J.D.
Photo: Bonnie Whicher
Contact: Contact:
LakeLegalNews@Gmail.com
Marilyn M. Aciego
LakeLegalMarilyn@Gmail.com
Cover Art Thinkstock / Dima Lomachevsky Contributing Authors Gary S. Roen Danielle Archer, Ed.D., LMHC
All contents 漏 2016 by James Hope D/B/A Lake Legal News. All rights reserved. Printed in the United States of America. Nothing may be reproduced in whole or in part without written permission from the publisher. Lake Legal News is not responsible for the contents, products, or services represented in any advertisements. Statements and opinions expressed in this publication are those of the authors and are not necessarily those of Lake Legal News or its staff. Any advice contained within this publication is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law. Unless pursuant to prior written arrangements with Lake Legal News, all submitted materials, whether written, photographic, or in other form will become the permanent property of Lake Legal News and shall be treated as unconditionally licensed and assigned to Lake Legal News for publication in print, via the internet, or through other medium, however logos and other legal marks as well as original copyrights remain the property of their respective owners. All submissions grant a right to Lake Legal News to edit said materials for accuracy, brevity, legality, or other concerns, and to title, caption, or make editorial comment upon such materials. Persons submitting materials agree to hold the publisher and staff of Lake Legal News harmless against claims of defamation, copyright infringement, invasion of privacy and unauthorized use of any person's name, photograph or personal information.
For advertising information and all other inquiries about this publication, contact the Publisher / Executive Editor: Write: Lake Legal News 路 Post Office Box 790 路 Tavares, FL 32778 E-mail: LakeLegalNews@Gmail.com 路 Visit: www.LakeLegalNews.com Phone: 352-408-6338
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Lake Legal News May 2016
Photo: Bonnie Whicher
James Hope, J.D. Publisher Executive Editor
prognostications pontifications platitudes prattle f r^om the Publisher MAY, 2016
Publishing Lake Legal News Issue #25 (in February) was as a personal high note— but reading the recent May issue of The Florida Bar News soon brought all things back down to reality. The Florida Bar's Young Lawyers Division president, Gordon Glover, was quoted as having this to say: “Most new law school graduates have $100,000 to $200,000 in student loan debt and nearly 16 percent of new law school graduates are unable to find any employment.” Don't just skim that statistic!... nearly a fifth of the lawyers who receive graduation hugs-and-kisses from family and friends upon becoming a lawyer will be unable to find any job in law! How does the Bar put a happy face on that? The article goes on to tout the “virtual law office” as part-andparcel of running “a virtual law firm.” (Well... at least you'd never be in danger of losing the front door key.) Let's hope these new grads (with no actual offices) will at least be paid in actual dollars, since one can assume their $100,000 – $200,000 in student loan debts are far more than “virtual” debts. (But that still leaves the problem of what to do with all those nice office plants that all the moms gave their grads for their first offices.) Read the Lake Legal News Issues you missed at: www.LakeLegalNews.com
Lake Legal News May 2016
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meet Pa R a L
e
A
gal
Michelle Adkins
Sellar, Sewell, Russ, Saylor & Johnson, P.A.
Writer: Marilyn M. Aciego Photo: Bonnie Whicher
Some people grow up knowing exactly (She worked hard to eventually become a what they want to be in life, but for others, Florida Bar registered paralegal in 2009.) like Michelle Adkins, their career somehow finds them. Hers stemmed from marriage. Adkins treasures the people she has met, from clients to others in the legal profesAdkins attended the same high school as sion. “I've built relationships with people her husband, Chris (the school's quarter- over the years who I can still call today back), but the two didn't meet or start if I need anything,” she states. Yet the dating until after high school, when they profession has its sad side too. “You're met at church. They married in 1985, and constantly aware of the brokenness in our in 1993 they had twin boys, Mylon (whom society, and because of that, it can make they call “Austin”) and Matthew (whom this job hard.” For example, Adkins rememthey call “Hunter”). When they married, bers a child custody case she worked on Chris' stepfather, Gordon G. Oldham Jr., with attorney George Russ as one of the had recently retired as the Fifth Judicial toughest: Foster parents were trying to Circuit's State Attorney—and so it's easy adopt a two-year-old child and at the last to see why Adkins tells Lake Legal News, “I minute, the biological father fought for didn't choose this profession—it chose me.” custody and won. “These are the types of cases that rip your heart out,” she admits. Beginning in 1995 as a felony deputy clerk in Tavares, Florida, Adkins worked Finding ways to relax, Adkins cooks, decodowntown for a decade before mov- rates and is a self-described “smooth jazz ing on to the law firm of Sellar, Sewell, junkie.” By constantly trying new dishes Russ, Saylor & Johnson P.A, in Lees- and changing things around, “[Chris] burg, Florida, where she remains today. never knows what he's going to come “This is the place I really learned the busi- home to… a painted wall, a dish he's not ness, from estate planning to family law and too sure about, a new furniture piece or litigation. I realized it was something I was a new shirt. Who knows? It's what keeps really good at, so it stuck,” Adkins notes. us young and enjoying everyday life.”
Adkins quickly points out, “I didn't choose this profession—it chose me.” 8
Lake Legal News May 2016
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Advertising Secrets:
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Today: “10 YEARS TO BRAND—START
I
n just about any business sector you might think of there are those few brands that are dominant. It's them— and then there's everybody else. And by essentially being a branding titan, good things happen for these companies. When customers are in need of a product or service they call these dominant companies first—which can effectively shut-out businesses in second place, since (let's face it), no one needs to buy two washing machines at a time, or hire two lawyers at a time. Yet all of this begs the question, ‘how does a business become a top-dog in the first place?’ Well, there's good news and there's bad news:
by James Hope, J.D.
is for soft drinks, restaurant chains, or the brand of golf balls you typically buy. “Brand loyalty” is a phrase that you consciously comprehend, but more than that, it is a phenomenon that you subconsciously fall prey to several times a day. Pretty much ‘steak sauce is steak sauce,’ but it has probably been quite some time since you have strayed from what you consider to be your personally preferred brand. Which is not even to mention the related concept of sticking with a so-called trusted brand.
The bad new is, building brand recognition, building brand trust, building brand loyalty—with the usual end-goal being that of building up a large, coveted base The good news is, branding works. To of repeat customers—takes time. How convince yourself of this, simply examine much time? One notable attorney, Alexyour own purchasing habits—whether it ander Shunnarah (who is considered by 10
Lake Legal News May 2016
about Mr. Hope...
BUILD A T NOW!!”
...a life-long entrepreneur with book, stage and television credits, attorney James Hope had his first professionally-printed business cards by age 10. He has sold mail-order products of his own devising all over the world. As a lawyer with a solo practice, he spent $300,000 of his own money becoming an advertising 'victim' before creating Lake Legal News to help other small businesses escape the trap of high-priced ads.
some to be a bona fide “master of marketing”—and whose law offices can receive as many as 2,000 telephone calls on any given Monday alone) was recently quoted as follows in The Trial Lawyer magazine: “Building a brand... a real brand... takes a minimum of ten years of constant daily marketing.” You just heard an expert: A decade to truly reach those vital touchstones of brand recognition, brand trust, brand loyalty, and of course that large, highly prized base of repeat customers. So my added advice? By all means, friend, you'd better start advertising now! I realize that especially to owners of relatively new business, advertising seems to present a chicken-and-egg problem; until the business gets going, where do the advertising dollars come from? But without spending dollars on advertising, where do the paying customers come from? In reality, it may at first ‘sting a little’ for a newer business to invest in advertising, but if making the investment hurts too much, then the real problem is that of an undercapitalized business venture. (Such a problem is beyond the scope of this article.) All things being equal however, advertising should be viewed as vital first step
towards the previously stated premise: A minimum of ten years of brand-building. (Actually, if a business owner I'm speaking with turns down all opportunities to participate in at least some well-chosen form of advertising, I like to respond with a blunt question: “Tell me something— do you plan on staying in business next year?” Often the response has something to do with ‘free word of mouth’ advertising... insert author's eye-roll here... which I promise to write about in the future.) Certainly it stands to reason that if your business is in some way different from the pack (which is a great way to succeed in business, by the way), then you want to begin to highlight those differences just as soon as possible. From there you need to continue to implant your message in the mind of customers through your advertisement's steady repetition. A quality magazine (such as LLN—motto: “Go Quarterly, Or Go Broke!”) is an excellent way to constantly reinforce your brand. And contrary to the glitz and cries of the internet age, print is far from dead! So, keep your eye on this column in the future as I continue to share money-saving advertising secrets that the other publishers won't! Lake Legal News May 2016
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Lake Getty Images
Legal News: Photo Essay
By: James Hope, J.D.
A
panel of three judges from Florida's Fifth District Court of Appeal in Daytona Beach made a special road trip to hold oral arguments at the Lake County Courthouse in Tavares, Florida, on April 5, 2016. The day was then topped off by a catered downtown luncheon.
closure case, the issue revolved around whether a Note entered into evidence at trial was hearsay. A second case—involving Walmart and The United Food and Commercial Workers Union—presented three separate issues, ranging from jurisdiction, to the breadth of an injunction, to “standing” to sue. The third case, Various attorneys argued a total of three like the first of the morning, was also appellate cases before Judges Sawaya, a foreclosure case, primarily addressLambert and Cohen. In a mortgage fore- ing foundational evidence issues.
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Lake Legal News May 2016
Lake Legal News May 2016
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Lake Legal Book
News: Briefs
Getty Images
By: Gary S. Roen
• Johnny May's Guide to Preventing Identity Theft
to successfully defend against an attack.” The author provides many ways to protect yourself against an identity thief. “While By: Johnny R. May no one can guarantee you will not become Publisher: Security Resources Unlimited a victim of identity theft, you can greatly minimize the chances of becoming a victim by implementing the safeguards menFlorida is a known target of scams of all tioned.” “The Guide to Identity Theft” has kinds to seniors. So many of the crimes a lot of simple things all of us can do to are phone telemarketers, fake IRS workers stop the identity thief from succeeding. who invade a person's home by a simple phone call, fly by night roofers, and banking swindlers are just of a few of the ploys • Hizzoner the Mayor they use to target seniors. The worst by far is identity theft. “The crime of iden- By: Carl T. Langford tity theft has reached epidemic propor- Publisher: Chateau Publishing tions. While estimates vary, somewhere between 500,000 and 750,000 consumers will become victims of identity theft this Former Mayor of Orlando Carl Langford year and the number is growing,” and clearly and frankly talks about governthe author tells of the many ways thieves ment in Orlando, the years of growth steal a person's identity. “It has often before and after Disney, the creation been said that the best offense is a good of Orlando International Airport, legal defense. You must understand the iden- problems the area faced and many other tity thief's mode of operation if you want things about “The City Beautiful.” The
Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for nearly 40 years; his reviews have appeared in hundreds of daily and weekly newspapers and other periodicals. Over the years Roen has been the Promotion / Sales Representative for several publishing houses. He was a talk show host on the Rollins College radio station, was co-host on a weekly radio talk show on “Desperate and Dateless,” was the roving reporter for “The Tourist Breakfast Travel Show,” frequently appeared on The Michelle Valentine show on cable and was a monthly guest on the Bobbie Thomas show. Find him currently on the “My Home Town” show with Jim Turner (WBZW, Orlando) and the Larry Steele show (WPUL, Daytona Beach). Roen also works for numerous companies in the field of market research in the Central Florida area as an independent contractor. 14
Lake Legal News May 2016
mayor who served for three terms com- tells little tidbits by someone who has ments on just about everything with been behind the scenes for a long time. charm and wit. “Hizzoner the Mayor” is for anyone who wants to know what Central Florida was like before Disney. • Law & Order Dead Line By: J. Madison Davis • Objection!: How High-Priced Defense Publisher: ibooks, Inc. Attorney's Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System You do not have to ever watched the TV show to enjoy this fine novel. The author By: Nancy Grace, with Diane Clehane follows the progression of the series. I Publisher: Hyperion especially liked the story for its behind the scenes exposure of the world of publishing, as well as a good tale of murder The boldly outspoken cable TV show host mystery. “Law & Order Dead Line” is for tells what's wrong with the court system any fan of the show as well as anyone who and like her show she pulls no punches. She wants to read a very good crime novel. tells who is getting justice, why the system is failing and lots more, but she also has many ideas on how to fix it. “Objection” is • Angels of Death also her telling why the OJ trial went the way it did, why Michael Jackson walked and By: Gary C. King why Scott Peterson went to jail. Whether Publisher: St. Martin's Press you like her or not, Grace has a lot to say in “Objection” and she does it very well. The horror in “Angles of Death” is true. The worst part of it is that the two broth• Mavericks of Golf: Behind Every ers look like perfect angels. These two Player is the Business of Golf were tried and convicted for the murder of their own father. The question so many By: Jim Hansberger asked when this case unfolded was “how Publisher: Legacy Book Publishing could these two children ever do this horrendous crime?” The author now tells how and why these two innocent looking boys Jim Hansberger who has been a part savagely murdered their victim by hitting of the game of Golf tells a lot of him with a baseball bat as he lay sleepinteresting behind the scenes things ing on the couch. The boys were tried as about the game many of us never adults in a case that stunned the nation knew in his book “Mavericks of Golf.” as it unfolded. The author digs deep into He begins by telling the history of the the story and tells all in a first class true game and where and when it was first crime book that explodes the myth that begun, how the golf ball and clubs kids are not capable of brutal murder. evolved into what we now see on the green and his personal involvement in the game and the popular cable station, Read Us Online: LakeLegalNews.com The Golf Channel. “Mavericks of Golf Lake Legal News May 2016
15
The One. The Only.
John Carnahan Writer: James Hope, J.D. Photo: Bonnie Whicher 16
Lake Legal News May 2016
The One & Only... T he state attorney's office in Lake County, Florida, might never be the same now that a quiet, unassuming legend has left the building for the final time. On a somewhat somber day which so many of his friends and colleagues had tried to push away in their minds, veteran prosecutor John Carnahan retired on April 1, 2016.
Carnahan served as a Fifth Judicial Circuit assistant state attorney for more than 26 years, beginning under the authority of State Attorney Ray Gill and finishing as a highly trusted employee of current State Attorney Brad King. Speaking with mixed emotions at Carnahan's retirement ceremony, Lake County division supervisor Walter Forgie dubbed Carnahan “a rock” and “as good an employee as anyone could ever have”—noting that “he's dedicated not only to his profession [but also] has a passion for doing the right thing.” Forgie added that in prosecuting juvenile offenders, Carnahan did not care merely about ‘numbers and stats,’ but he “always cared about what was best for these children, which is the mark not only of a good prosecutor, but a good man.” Taking her turn to speak, Circuit Court Judge Heidi Davis got right to the point by using a series of words to describe the retiring attorney, carefully enunciating each one to maximize its stand-alone meaning: “Honesty; honor; good character; principle; ethics; morals; decency; fairness; scrupulousness; sincerity; and truthfulness.” The judge then applied a single word to Carnahan, summing up all the other words: “Integrity.” No one present in the room to honor Carnahan for his years
of public service could possibly disagree. Speaking as well at the event—“on behalf of all of John's docket partners, past as present,”—was assistant state attorney James Argento. The vast majority of his own time as a prosecutor Argento worked with Carnahan on the juvenile docket and often referred during his remarks to his close friend as “Mr. Carnahan” or “Mr. John,” as a show of respect. It was clear that Argento wanted the audience to understand that “there were times in the juvenile courtroom where the only person who cared more about the children that we were prosecuting [than Carnahan] was the parent of that child—and sometimes not event that was the case, and it was John Carnahan who cared the most.” Argento thanked Carnahan for supplying him with “support, encouragement and knowledge,” not to mention something as (Continued on next page)
A brief passage from John's retirement speech: “It's impossible to fully respond to all of the nice things that have been said about me... that individuals have come up and said to me in the last 48 hours... all of the people who have spoken today... it's above-and-beyond what I expected and I am truly humbled by this. Thank you all for those things, and I don't know if I deserve it, but I certainly thank you for saying it and I hope I have done some things to live up to all those kind words.” — John Carnahan Lake Legal News May 2016
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(Continued from previous page)
simple as the car seat Carnahan bought for Argento's child—which Argento can view in his rearview mirror while reflecting on Carnahan's thoughtfulness. Towards the end, sharing ‘Carnahan stories’ with the group began to get Argeno genuinely choked up. Also on hand to pay tribute to Carnahan was retired prosecutor Bill Gross, who has known Carnahan since 1988. Gross said that whereas many in the audience may know Carnahan simply as “the guru of everything juvenile,” he and Carnahan are much closer. “To this day I consider him one of my best friends.” Drawing from a well of anecdotes, Gross explained that by sharing an office wall with Carnahan at the state attorney's office he learned three things about Carnahan: That Carnahan likes classic rock, that he likes it loud, and that he likes to sing along. (A collective mental image of this provoked the audience to instant laughter.) In addition to receiving a few gag-gifts from his friend, Gross, Forgie finally transitioned the crowd into a speech by Carnahan himself by first bestowing on the retiree some state attorney's office items, such as a plaque bearing the dates of Carnahan's service. Carnahan's address included, one final time, the lawyer's own oft-said words:“May it please the Court?”
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Fla. Bar Board Certified Criminal Trial Law Expert Qualifications: I have practiced criminal law in Tavares, Florida, for 27 years. I am a former Assistant State Attorney, with supervisory experience at the juvenile, misdemeanor, felony and postconviction relief levels, including a designation as Lake County's first sex battery and first careercriminal prosecutor. My actual jury trial experience ranges from shoplifting and DUI to capital sexual battery and first degree murder—and I have stood before a felony jury an average of twice-a-year for 27 years. In fact, I have quadruple the number of felony jury trials required for initial Board Certification.
Contact Info:
Available for a free consultation (“Of Counsel”) through the Law Office of Zachary J. McCormick, 210 N. Texas Ave., Tavares, Florida. To reach me:
(352) 742-7474 • www.ZJMlaw.com, or (352) 742-3488 • www.AttorneyJames Hope.com
James Hope, J.D.
u are serious “Call when yo fended.” about being de
s ‛ l r i G & s ‛ y o B s e i t i v i t c A m Courtroo ! n u F f o k o o B
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! E U S S I N A H A N JOHN CAR 20
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KIDS,
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Out t u C y l l u f e r Ca Your Favorite rt Juvenile Cou Prosecutor...
n Mr. Carnaha
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t u O t u C y l l u f Care s... e i r o s s e c c A r You
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til Have Fun Un lls The Judge Ca You Up To Be Sentenced!
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At Lake Legal News, we don't have dozens of people on the payroll like those ‘other guys’ do— and we pass our low-overhead savings on to you!
p. 28 ..
Robe. s The
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Thom
Skidm as D.
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C
olorful posters drawn by school children were everywhere, as in years past, but this year the artwork followed the 2016 Law Day theme, “Miranda: More Than Words.” Assistant state attorney William Gladson gave a short legal dissertation to underscore the day's focus, namely, bringing attention to “the procedural protections afforded to all of us by the U.S. Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty.”
Art: Thinkstock / Dima Lomachevsky
Held at the Mission Inn Resort in HoweyIn-The-Hills, Florida, this year's luncheon was well attended, with tables being added to accommodate overflow guests. Lake County Bar Association members were able to casually mingle not only with
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Writer: James Hope, J.D. Photos: James Hope, J.D.
elected officials, but with several children and their families who were invited as well. Of course, awards are always a highlight of the yearly event. There are poster contest winners; a Community Legal Services of Mid-Florida Volunteers Lawyers Project “Pro Bono Attorney of the Year” acknowledgment (this year, acknowledging attorney Kelly Johnson, who practices law in Mount Dora, Florida); a “James Durden Diversity Scholarship” recipient; and even a new recognition: The first annual “Lake County Teen Court Award,” sponsored by the Law Office of Zachary McCormick.
L W A D Y A Lake Legal News May 2016
Lots more photos and winners on the following pages!
2016 Lake County Florida Lake Legal News May 2016
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James Durden Diversity Scholarship Sponsor: Lake C'nty Bar Association 2016 Recipient: Robert Evens III With great poise and confidence—well dressed, and every bit looking the part of a high school senior with a promising future— Robert Evens III walked onto the Law Day podium and accepted the $1,000 James Durden Diversity Scholarship for 2016. His family looked on with notable pride. Each year the Lake County Bar Association selects one scholarship winner from among is applicants in a group of graduating high school seniors. Robert—who is currently a senior at Lake Minneola High School in Minneola, Florida—ranks Summa Cum Laude with a GPA above 4.0. He also boasts a long list of social, extracurricular, and volunteer activities to his credit, which round out his schooling and a part-time job. To qualify, each winning recipient must already possess an acceptance-letter from an accredited four-year university or community college; Robert has been accepted to the University of Florida, in Gainesville.
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Lake Legal News May 2016
Lake County Teen Court Award Sponsor: Atty. Zach McCormick Recipient: Connor Jenkins Connor Jenkins became the proud winner of the first annual Lake County Teen Court Award, receiving a trophy (which acknowledged her “excellence”) and a gift of $100 to spend as she might choose. Conner is a Eustis High School graduate; a Girl's State Delegate; an AP Honor's Student; a National Honor Society member; and a Jefferson Award member. (She has also written several “Teen Court Report” articles for Lake Legal News.) Actively involved in Lake County's Teen Court program since 2009, Connor volunteered nearly 400 hours of service in just the past five years, helping first-time juvenile offenders turn their lives around. Her nomination letter (written by program supervisor Stephanie Glass) contained much high praise: “Connor leads by example and has a strong work ethic, is ambitious, and motivated to succeed. [She] consistently performs at her highest-ability level and challenges others to do the same.”
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Lake Legal Psychology On
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By: Danielle Archer, Ed.D., LMHC
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pproximately one year after the war in Afghanistan eclipsed Vietnam as America's longest war, the National Council of Juvenile and Family Court Judges (NCJFCJ) conducted the first nationwide survey of judges on the frequency of their contacts with military families and their perceived education needs regarding military families. The consensus was that the wars in Iraq and Afghanistan along with Operation Iraqi Freedom and Operation Enduring Freedom have resulted in increased numbers of military families in the family court system. A recent trend in family court is the use of a service member or veteran's diagnosis of Post Traumatic Stress Disorder (PTSD) as a tool to argue issues such as granting limited, supervised, or no timesharing with children or as grounds for a domestic violence injunction. The disclosure of an individual's diagnosis and the use of it in the courts is often done improperly and without adequate research being done on that particular individual's mental health diagnosis and course of treatment. While the courts have guidelines to determine a person's child support obligation, one cannot as easily determine a person's risk and protective factors for violent PTSD reactions based on the criteria in 34
Lake Legal News May 2016
the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). In all cases involving military families, the families may experience similar stressors, but each experience is personal, different from other families and even different from other members within the same family. Research suggests judges should have knowledge of PTSD and other Operational Stress Injuries (OSIs) and symptomology that might be detectable in court or through examination of the parties or witnesses. If there is an understanding of the efficacy of treatment types, then it is possible for the courts to responsibly address treatment in their parenting plans and other family court interventions. PTSD can grow increasingly worse when it remains untreated and family disputes that stem from untreated PTSD can create more harm than the disorder alone. Additionally, for legal professionals, it is crucial to know what can or cannot be disclosed in the courts regarding an individual's mental health diagnosis. Note that as suggested reading, The Florida Bar Journal published an article titled, “Florida Psychotherapist-Patient Privilege in Family Court� which does an excellent job of providing a brief outline of confidentiality and privilege (May 2013, Vol. 87, No. 5).
Consulting with a licensed mental health professional (LMHC, LMFT, LSCW or psychologist) who specializes in trauma related disorders as well as experience with military culture may assist the attorney as well as their client in understanding the challenges the family is facing as well as assist with the scope and direction of their case. Danielle Archer, Ed.D., LMHC, holds a B.S. in Behavioral Science from the New York Institute of Technology, an M.S. in Counseling Psychology from Palm Beach Atlantic University, and an Ed.D. in Pastoral Community Counseling from Argosy University. She is a mental health practitioner in Clermont, Florida, where she owns and operates Agape Court & Counseling Services, LLC.
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y is that the agenc U.S. statutes t to more than 400 its commitmen enforcing in public safety. responsible for al security and ensuring nation justic shoul only referred the criminal a document comm correctional issue possibilities and may . or I.C.E jail you ner” to a local citizen, then y of an individual to as a “detai e a non-U.S. al is seeking custod if you engag If you are facility when it instituting remov arning that en for purposes of should heed-w of criminal activity—ev known as an in that facility ing detainer is better a in any type fting—or when simply travel proceedings. This ” A common practice in Florid be t as simple as shopli itizen, it may cause you to ration “hold. detainers agains immig ration using immig trial, and with another non-c an immigration “hold” placed involves I.C.E. status’ before al ut have crimin and a ‘witho d in cause ed arreste a defendant l process—be your case in resolv any prosecutoria have grounds for against you until legal status can be determined. before often lly does not court and/or your person genera outcome of the the such of less U.S. regard legal citizen, the scope remaining in the defendant within ent involving a U.S. al violations is Conversely, a In a typical case nent Resid criminal case. quences for crimin a fine and/or , such as Legal Perma to of possible conse paying immigration status not subject to a “hold” prior g time in jail, lly limited to servin other court-imposed conditions. , unless he/she status, is genera for state criminal matter er removable, fulfillment of some many cases, the law allows conclusion of the ing him/h in render d, liberty y, at tions n arreste ionall remai When has prior convic al order. Addit the accused to in a standing remov ration holds) give bail so as to allow matter is pending. However, has and al (i.e., immig being allowed while the crimin undocumented I.C.E. detainers non-citizens, before law requires authority to detain date, pending cases involving y the local jails the er criminal custod their release of d wheth out The ine beyon ls. bail to determ officia immigrants ) agency to first y to immigration at cement (I.CE. the arresting transfer of custod ration holds on detainees Customs Enfor of immig in violation of Immigration and ce in the State placement of detainee a person st). Hence, once widespread practi illegally placed considers the local jails is a are (and thus of intere of the charges, cases, the holds , and Immigration laws less Florida. In many officials, judges are is arrested, regard d and have the law enforcement rants the non-citizen local notifie immig by ed are rities . undocument immigration autho “hold” on the arrested person jailers. As a result, unauthorized detentions even a y and power to place been cleared. subject to length al charges have I.C.E. hold? U.S. though their crimin and what is an cement (I.C.E.) Who is I.C.E., on a jailed imCustoms Enfor an I.C.E. hold is a request to Immigration and igative Agency directly under er Who can place It’s invest t ity. immigration detainto detain an indiis the larges land Secur migrant? An tment of Home ement agency al security, enforc law nation the U.S. Depar t a local n is to protec U.S. page 38) primary missio integrity of the (Continued on (including the The immigration. public safety s, trade and ity encompass borders), custom enforcement author agency’s law in Spanish). iples non-U.S.
citizens
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Civil Blotter
● In what can best be thought of as a civil suit ‘total wipe-out’ verdict, the appellate court came to an at-fault driver's rescue in State Farm v. Brewer, 41 Fla. L. Weekly D1070a (Fla. App. 2nd DCA, May 4, 2016): [T]he Brewers presented some evidence that Goellner [a physician] had taken prescription sleeping medication before setting out on the three-hour drive from The Villages to Sebring. On the basis of the medication evidence, the Brewers sought leave to seek punitive damages, which the trial court granted. Goellner did not appeal that ruling.
© iStockphoto.com / James Benet
The jury returned a verdict awarding Mr. Brewer $628,697.61 and Mrs. Brewer $109,500 in compensatory damages, and it found that the Brewers were entitled to an award of punitive damages.
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Lake Legal News May 2016
● Many criminal law practitioners were shocked—and more than few were likely caught off guard—when in 2008 the measuring stick for youthful offender sentencing changed from ‘younger than age 21 at the time of the offense’ to ‘younger than age 21 at the time of sentencing.’ (Naturally, one perceived builtin flaw was that sentencing dates can be manipulated, whereas the frozen fact of one's age at the time of an offense cannot.) One defendant recently took Florida's youthful offender sentencing scheme as high as the Florida Supreme Court. Hence, in Jackson v. State, 41 Fla. L. Weekly S209a (Fla. S. Ct., May 5, 2016): [Inter alia], Jackson argues that section 958.04(1)(b) violates equal protection because the age-atsentencing classification creates arbitrary and irrational distinctions between otherwise eligible defendants. He claims that no other Florida statute distinguishes between defendants based solely on their age at sentencing and therefore this classification triggers strict scrutiny. * * * In analyzing whether or not section 958.04(1)(b) violates equal protection, the first question is whether or
The second part of the trial then addressed the amount of punitive damages. The Brewers presented no additional evidence in this portion of the trial and asked only for the jurors to award an amount that was appropriate to punish Goellner. In turn, Goellner testified that he had approximately $300,000 in bank and retirement accounts and a vehicle worth approximately $500. He testified that he did not own any other assets. He also testified that he owed approximately $16,000 in taxes, making his net worth $284,000. He then testified to his monthly income and expenses. The Brewers did not specifically controvert any of this evidence. In argument, while Goellner conceded that the jurors were entitled to award punitive damages, he asserted that any punitive dam-
not the statute affects a fundamental right or a suspect class. Neither this Court nor any other Florida court has determined whether youthful offender status is a fundamental right. However, courts in other states have held that youthful offender status is not a fundamental right for eligible defendants. See People v. Robert Z., 511 N.Y.S.2d 473 (N.Y. Co. Ct. 1986) (“There is no constitutional right to youthful offender treatment. Such treatment is entirely a gratuitous creature of the Legislature, subject to such conditions as the Legislature may impose without violating constitutional guarantees.” (citations and emphasis omitted)); State v. Johnson, 279 S.E.2d 606, 447 (S.C. 1981) (“The statutory right to youthful offender treatment is simply not a fundamental right.”); Hilber v. State, 277 N.W.2d 839, 842 (Wis. 1979) (“Hilber and Mayes argue that the statutory right to youthful offender treatment is ‘fundamental,' but their arguments are not convincing and are not supported by any authority. Indeed, differences in the treatment of criminal defendants have been viewed as being subject to the rational basis test.” (citations omitted)). We agree with our sister courts. * * *
ages award should not be so large as to financially devastate him. Despite this argument, the jury returned an award of punitive damages in the amount of $284,000— or 100% of Goellner's net worth. Goellner filed a motion for remittitur or new trial, which the trial court denied. The court then entered final judgment against Goellner for the full amount of the jury's verdict. In this appeal, Goellner argues that the award of punitive damages is so large as to be unconstitutional. The purpose of an award of punitive damages is “to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition.” [Citation omitted.] While the amount of punitive damages necessary to accomplish these aims is generally left to the discretion of the jury, “the im-
Moreover, the youthful offender statute does not involve a suspect class. Under a constitutional analysis, a suspect class is one where strict scrutiny is required when questions of equal protection arise. Generally, classifications such as race, national origin, or alienage have been held to be suspect classifications. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 61 (1973). Youth, however, is not a suspect classification. See art. I, § 2, Fla. Const. (defining the protected classes as “race, religion, national origin, or physical disability”); see also Gregory v. Ashcroft, 501 U.S. 452, 470 (1991) (holding that age is not a suspect classification under the Equal Protection Clause). * * * The Youthful Offender statutes are the means to achieve the State's goal of providing rehabilitation to young offenders and preventing association between young offenders and older criminals. Section 958.04(1) (b) as amended serves a legitimate state interest by ensuring that only those who are truly youthful are eligible for youthful offender sentencing. By restricting eligibil-
position of a punitive damage award is subject to constitutional limitations because ‘[t]he Due Process Clause of the Fourteenth Amendment prohibits a state from imposing a “grossly excessive” punishment on a tortfeasor.'” [Citations omitted.] * * * Proportionality is assessed by determining whether the award “bears some relationship to the defendant's ability to pay and does not result in economic castigation or bankruptcy of the defendant.” [Citation omitted.] The award “should be painful enough to provide some retribution and deterrence, but should not be allowed to destroy the defendant.” Arab Termite & Pest Control, 409 So. 2d at 1043; see also Joab, Inc. v. Thrall, 245 So. 2d 291, 293 (Fla.
ity to those who are younger than 21 at the time of sentencing, the legislation guarantees that young offenders will not associate with older, more experienced offenders. For this reason, section 958.04(1) (b) does not violate due process. Jackson has failed to demonstrate that section 958.04(1)(b), as amended, violates equal protection or due process. Accordingly, we affirm the Fourth District. ● The case of Grey v. State, 41 Fla. L. Weekly, D1035a (Fla. App. 4th DCA, April 27, 2016), serves to illustrate that judicial ‘short-cuts’ lead to appellate reversals, even in matters where judges have discretion: Without conducting a hearing, the court entered an order denying Appellant's petition [to have her criminal history record sealed] on the grounds that “the conduct detailed in the Probable Cause Affidavit evidences a sophisticated criminal course of conduct that if hidden from the view of ordinary citizens would deprive them of information essential to appropriately guard against a threat to their security.” Thereafter, Appellant filed a “Renewed Petition to Seal Case-File”
3d DCA 1971) (“In awarding punitive damages the jury may properly punish each wrongdoer by exacting from his pocketbook a sum of money which, according to his financial ability, will hurt, but not bank rupt... .”). Put simply, an award of punitive damages that bankrupts or financially devastates the defendant is unconstitutionally excessive. * * * We have been unable to find any case presenting the exact issue raised here—a punitive damages award that takes exactly 100% of the defendant's net worth. However, we are guided by the Fourth District's decision in Young, in which that
(Continued on next page)
in which she alleged that she was innocent of the underlying offense and submitted evidence supporting her position. At the hearing on Appellant's renewed petition, the State informed the court it was not objecting to Appellant's request. Appellant made a brief statement on her own behalf, explaining that she pleaded no contest to a reduced charge in order to resolve the matter in an expedient fashion and that her record was preventing her from obtaining employment. The court refused to consider Appellant's position and denied her petition based on the nature of the initial charge and the corresponding probable cause affidavit. This appeal follows. The sealing of a criminal history is governed by section 943.059 of the Florida Statutes, and Florida Rule of Criminal Procedure 3.692(a)(1). If a petitioner satisfies the requirements of section 943.059 and Rule 3.692(a)(1), the petitioner is “presumptively entitled to an order to seal or expunge court records.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997). While the decision to seal a record is in the
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(Continued from previous page) court affirmed the trial court's ruling that a punitive damages award representing forty percent of the defendant's net worth was excessive. 88 So. 3d at 1007. Certainly if an award of forty percent of net worth is unconstitutionally excessive, then an award of 100% of net worth is likewise excessive. ● Is your judge in a hurry? Well then here's some food for thought, taken from Harris v. Dept. of Revenie, 41 Fla. L. Weekly D1109a (Fla. App. 2nd DCA, May 6, 2016), where Harris argued on appeal that the administrative law judge in his case abused his/her discretion in limiting the hearing to forty-five minutes and denying Harris' motion to continue the proceedings for further evidence and argument. (In
(Continued from previous page) trial judge's “sole discretion,” the exercise of discretion requires “good reason based on [the] facts and circumstances of [the petitioner's] individual case.” Shanks v. State, 82 So. 3d 1226, 1227 (Fla. 1st DCA 2012). * * * In Gotowala v. State, 184 So. 3d 568 (Fla. 4th DCA 2016), the presiding judge denied a petitioner's request to seal his criminal record although the petitioner satisfied the statutory requirements of section 943.059 and Rule 3.692. Id. at 569. In doing so, the court relied on the facts laid out in the arresting officer's probable cause affidavit and based on those facts, ruled that sealing the petitioner's record would “ ‘pose[ ] a danger to the citizens of Broward County and the general public.' ” Id. We reversed, holding that: [T]he lower court's mere reliance on the facts as laid out in a probable cause affidavit does not show “the court ma[d]e its decision based on consideration of all the facts and circumstances” of [petitioner's] case. Moreover, the court's order does
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fact, the ALJ had told the parties: “We're moving on. You're the one who needs to conclude this hearing in the next fifteen minutes, and we have other issues that have been raised by the respondent, and I'm not going to not allow him to pursue them.”) Note that the law, however, dictated a much different outcome: Article I, section 9 of the Florida Constitution provides: “No person shall be deprived of life, liberty or property without due process of law.” Generally, due process is satisfied by notice and an opportunity to be heard. Ryan v. Ryan, 277 So. 2d 266, 274 (Fla. 1973). “[T]he opportunity to be heard must be ‘at a meaningful time and in a meaningful manner.' ” Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (quoting Mathews v. Elnot indicate the specific facts that led it to conclude that sealing [petitioner's] records would pose a danger to public safety. Id.
at
570
(citation
omitted).
Gotowala establishes that a court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit. Rather, the court must consider the facts actually established in the petitioner's case. ● As a reminder, (and based upon Gonzales v. State, 816 So. 2d 720, 722 (Fla. 5th DCA 2002), “If the combination of probation and prison term exceeds the statutory maximum and the maximum has been expended, the balance of the probation being invalid cannot be revoked and the defendant resentenced.” This settled principle recently came into play in the case of Tate v. State, 41 Fla. Law Weekly, D1191a (Fla. App. 1st DCA, May 18, 2016): Because Tate was in his thirties when he committed the charged offenses and his victim was thirteen years old, he should have been charged under section 800.04(5)(c)2., a second-degree felony, which carries a 15-year maximum sentence.
dridge, 424 U.S. 319, 333 (1976)). * * * We sympathize with the ALJ's efforts to expediently resolve this case, but on the record before this court, Harris was denied due process by the arbitrary time constraint and refusal to grant a continuance... We recognize that the hearing had been continued once before, but a single continuance granted because a party has recently obtained counsel does not, by itself, justify the denial of a second continuance under these circumstances. ● Possibly proving the adage that “all is well that ends well,” an appellate court reversed the decision of a less-than-helpful injunction judge. (For a change, lets begin the story near the end—with the footnote): § 775.082(3)(d), Fla. Stat. Instead, Tate was charged and convicted— apparently erroneously—under section 800.04(5)(d), which involves an offender under 18 years of age and is a third-degree felony, carrying a five-year maximum sentence. * * * Both the State and Tate agree that reversal is required because the trial court lost its jurisdiction once Tate served five years of his probation sentence. Where a defendant is sentenced to probation, and the duration of the probation exceeds what is authorized by statute, the trial court is without jurisdiction to revoke it or impose further sentence once the legal portion of the probation is successfully served. ● Do you remember law school exams? Or perhaps the Bar exam? This recent decision—Burton v. State, 41 Fla. Law Weekly D1200a (Fla. App. 5th DCA, May 20, 2016)—would make a good fact-pattern for either. Appealing his murder conviction, Burton challenged the denial of his motion to suppress evidence obtained from a warrantless search of his cell phone incident to his arrest. Note, in part, the court's analysis: The Florida Supreme Court and
When counsel for Mr. Blum inquired as to whether the injunction would require Mr. Scott to remove existing articles, blog posts, and videos, the court responded, “I'm done. I granted the petition. That's all I can say. That's all I can do.” When Mr. Scott then asked, “What can I and can't I do?” the court responded, “I don't give legal advice. I just grant or deny petitions. I granted it.” Of course, the real problem (and reason for the appellate reversal) was as follows: Mr. Blum filed a petition for injunction for protection against cyberstalking... [and] testified that Mr. Scott sent emails about Mr. Blum and Mr. Blum's family, partners, and former employees to 2200 NAPPS members... and the allegations within them were potentially the U.S. Supreme Court have both recently held that police generally must obtain a warrant before searching a suspect's cell phone and may not, as a matter of course, search a phone incident to a lawful arrest. Riley v. California, 134 S. Ct. 2473, 2485 (2014); Smallwood v. State (Smallwood II), 113 So. 3d 724, 732 (Fla. 2013). Furthermore, the U.S. Supreme Court has held that its constitutional decisions apply retroactively to all cases pending on direct appeal at the time of the decision. Griffith v. Kentucky, 479 U.S. 334, 328 (1987). Therefore, Riley applies retroactively, and the police violated Burton's Fourth Amendment rights in searching his phone without a warrant. Yet that determination does not end our inquiry. In Davis, the U.S. Supreme Court held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” 564 U.S. at 232 (emphasis added). The Court emphasized that the exclusionary rule is not a constitutional requirement, but rather a judicial creation intended to deter future Fourth Amendment violations. Id. at 236. Deterrence, though, is pre-
damaging to Mr. Blum's business and reputation Copies of the emails supported Mr. Blum's testimony. Mr. Blum testified that none of the emails were sent directly to him but that he knows about them because they were forwarded by the recipients to him or he received phone calls about them. The emails, articles, blog posts, and videos did not contain threats against Mr. Blum. However, Mr. Blum claimed that the content of the emails, articles, blog posts, and videos caused him emotional distress; he had trouble sleeping and eating, the emails were constantly on his mind, and he constantly had to defend himself to people. * * * “[W]here comments are made on mised on law enforcement knowing of the culpability of its conduct, or, at a minimum, acting negligently in disregard of a risk of possible Fourth Amendment violations. Id. at 237. When the police have a reasonable, good-faith belief in the legality of their actions, deterrence can have little effect and does not merit the high cost to the legal system that accompanies the exclusion of reliable evidence. Id. at 237-39. * * * Thus the [Davis] Court held that the exclusionary rule is not an appropriate remedy for violations of a defendant's Fourth Amendment rights where the police act in good-faith reliance on binding appellate precedent. Id. at 249-50. In this case, the trial court found that the police searched Burton's phone pursuant to a training bulletin prepared by legal counsel for the Orlando Police Department and constituting official department policy. That guidance explained that under precedent from this Court, the police were not required to seek a warrant before searching a suspect's cell phone incident to an
an electronic medium to be read by others, they cannot be said to be directed to a particular person.” David[ v. Textor], 41 Fla. L. Weekly at D132 (citing Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091-92 (Fla. 3d DCA 2014)). * * * The emails... do not constitute words “directed at a specific person” for purposes of the cyberstalking statute simply because they are about Mr. Blum. See David,... Further, “[t]hat [the articles and videos] may be embarrassing to [Mr. Blum] is not at all the same as causing him substantial emotional distress sufficient to obtain an injunction.” [Citation omitted.] Reversed. Scott v. Blum, 41 Fla. Law Weekly, 1056a (Fla.App. 2nd DCA, May 29, 2016). otherwise lawful arrest. The training bulletin was based on this Court's decision in State v. Glasco (Glasco I), 90 So. 3d 905, 908 (Fla. 5th DCA 2012) quashed by Glasco v. State (Glasco II), 137 So. 3d 1014, 1015 (Fla. 2014), which permitted such searches. Glasco I, 90 So. 3d at 908. * * * With the benefit of hindsight—and particularly given the current ubiquity of smart phones—the results in Riley and Smallwood II may seem to have been inevitable. Yet at the time, the police had no reason to believe, and could not have predicted, that our decision would later be overturned. The police are not required to second guess this Court's holdings to determine which of them are most likely to withstand further review, nor should the possibility that our decision may later be overturned foreclose them from using a procedure explicitly endorsed by this Court. We find that the police acted reasonably in relying on binding precedent from this Court in searching Burton's cell phone incident to his arrest... Accordingly, we affirm his conviction. Lake Legal News May 2016
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WOR L D - W I D E- LAW Y ER C H AT
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• I'm quoting verbatim [from a craigslist posting for a lawyer]: "Very modest pay to start, with contingent upside. You should consider the learning opportunity and experience to be part of your compensation." I wonder if this type of hubris is on display in medicine, engineering, accounting, finance, IT, teaching or any other professional field?. {FROM THE WORLD WIDE WEB} • [F]or the life of me I can't understand why you guys try to talk people out of law school...especially people you aren't even that close to. People make bad decisions all the [time]— taking out payday loans, going to law school, rent to own furniture, etc...some people are just bound to make bad decisions. {FROM THE WORLD WIDE WEB} • The new proposal on the table is "Allowing 10% of an entering class to be admitted without LSAT scores". This means that 10% of the class is going to be composed of folks who either never took the test or scored so low that the schools would rather put them into the "no score" category to avoid a drop in rankings. That should fill some seats. I think the next step is to troll for prospective students among the mentally unstable and the criminally insane. {FROM THE WORLD WIDE WEB}
• I have some friends who travel the world, some who are teachers and have like 4 months a year off, some who work a relaxed borderline stress free 9-5 with no weekends and all federal holidays, some that truly have time to do something with their lives during the week instead of living for the weekends like I typically do. Some days my wife and I talk about just savings up 50k and just quitting [the joint practice of law] and starting some business together. Idk, I don't think anything like that is realistic. But even though we have it better than like 90% of attorneys, I sometimes feel trapped and hoping that someday we can just do SOMETHING that allows for travel, leisure and minimal stress. Even though we are more successful than doc reviewers, I still really wish I could have done 1 of a thousand other things I can think of instead of going to law school. {FROM THE WORLD WIDE WEB} • After 8 years of practice I suffered a personal tragedy and had an awakening of sorts. I didn't want to spend my life doing something I disliked and that stressed me out. So I'm mostly done. I started wrapping up and giving away my cases and realized how hard it is to STOP practicing law. It's been about two years and I'm mostly finally out. I do still occasionally do freelance legal writing and research work for other attorneys and I have a few easy local counsel contracts with national firms that pay me pretty well to do little work. I feel lucky to have these options. But ideally I would like to go inactive and never do anything law related again. {FROM THE WORLD WIDE WEB} • I found myself on the golf course last week, with my mind drifting off and feeling envy for the guy that drives around the caged golf cart picking up balls on the range. I had more envy for the marshal that tours around the course chatting folks up and nudging players along. That is my perfect job. You don't have to carry around other people's problems around, like I have done for twenty years. I am a master of my craft and at the top of the game. Yet, I want to give it up. {FROM THE WORLD WIDE WEB}
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