How to Answer Tough Law School Interview Questions

May 10, 2018
By Ilana Kowarski

In law school interviews, it’s important to explain why you’re a strong candidate, experts say.

Trial lawyers and appellate lawyers are often asked questions by judges who expect an immediate response. These attorneys cannot waver over what to say; they must improvise and come up with a compelling argument.

Some of the most influential attorneys in U.S. history are famous for their ability to deliver captivating, off-the-cuff speeches. Before he joined the U.S. Supreme Court, Justice Thurgood Marshall was a litigator known for his powerful speeches during civil rights cases. And Clarence Darrow – a trial attorney who represented clients in some of the most controversial legal disputes of the early 20th century like the “Scopes monkey trial” – was often lauded for his ability to sway juries with his remarks.

Law school admissions committees strive to identify students who have the potential to have a lasting positive impact on the legal profession. That’s one reason why they look for applicants who have the capacity to speak with authority and conviction in a way that inspires others. But law schools also have a more pragmatic reason to recruit students with a silver tongue: Oral advocacy is a crucial part of many legal jobs.

Attorney Andrew Ittleman, a founder and partner with the Fuerst Ittleman David & Joseph law firm in Miami, says that showing poise during a law school admissions interview is a must.

“[In] exercises like that, you know, whether it’s sitting in an interview or arguing in court, you want to get to a place where you can be loose going in,” Ittleman says. “It’s not a test… Nobody is grading you the way that they would on a test. They want to see who you are as a person.”

Ittleman advises law school applicants to conduct a few practice interviews with people they trust who can provide honest feedback. “Go through a couple of dry runs,” he suggests. Ittleman says practice interviews help students discover the right words to use to clearly express their thoughts.

With that in mind, attorneys say that law school applicants should figure out how they’d like to answer the following questions before their admissions interviews.

1. Why do you want to become a lawyer? Experts say this is a question that J.D. applicants must have a compelling answer for, because law schools are wary of admitting students who view law school as a delay tactic to avoid making a career choice.

“I believe strongly that we should prepare and produce graduates who passionately want to be lawyers, because I believe lawyers who are passionate about what they are doing will be happy lawyers,” says Kathleen Boozang, dean of the Seton Hall University School of Law in New Jersey. “And so I am looking to see that the student is going to law school because they are inspired to go to law school, as opposed to [because] they really can’t think of anything else to do.”

2. Why are you applying to this particular law school? “Students should go into interviews knowing everything on that school’s website, its values, how it describes itself, who the star professors are, etc.,” says Ella Tyler, a retired lawyer who works as a tutor for Varsity Tutors, a virtual education platform. “Law requires preparation and research, so if you showcase those skill sets in your interview, it’s proof that you have what it takes to be a lawyer.”

3. What kind of law are you most interested in practicing? What is your dream law job? If you want to use a law degree in an unconventional way, such as in a policy job or a nonlegal business position, you may be asked: Why do you need a law degree? What would a law degree allow you to do professionally that you couldn’t do without the degree?

Experts say law schools are looking for applicants who can clearly articulate how they intend to use a J.D., because these schools don’t want to admit students who lack a clear justification for investing the time, effort and expense that law school requires.

“Law school is hard, it’s a lot of work, and you have to have the spark,” Boozang says. “You have to have a passion, you need to want to do it, and I want to just confirm that the student knows what they are getting into and that the desire is real.”

4. What book are you reading at the moment, and what do you think of it? If you aren’t currently reading a book, you may be asked an alternative question: Who is your favorite author and why?

Boozang says she asks questions like this to see whether a J.D. applicant is intellectually curious, enjoys the written word and can formulate a coherent argument about what he or she has read. The ability to analyze a text is a key skill for an aspiring lawyer, Boozang says.

Questions of this type are also meant to reveal whether an applicant has a well-rounded personality that includes interests besides academics, Boozang says. She advises applicants to read the news and continue pursuing their extracurricular interests during the law school admissions process, because it gives them something interesting to discuss when they are asked personal questions.

“I emphasize the importance to young people thinking about law school the need to be thinking about the world around them,” she says.

5. What college paper are you most proud of? The thinking behind this question is that it allows a J.D. applicant to discuss a subject they are enthusiastic and knowledgeable about, Boozang says. This interview question illuminates the way an applicant thinks and clarifies whether they have the mindset of a future attorney, she adds.

Boozang says a J.D. applicant who is asked this question should be prepared to answer follow-up queries about his or her paper, which may ultimately lead to a back-and-forth discussion with the interviewer. She says that the topic or thesis of the paper will be less relevant to the interviewer than whether the applicant is able to clearly explain his or her ideas and make a coherent argument.

6. How would you contribute to a law school class? Experts say questions like this give law school applicants an opportunity to differentiate themselves from their competitors in the J.D. admissions process.

Nyana Abreu, an attorney at Sequor Law in Miami, says the key to answering this question well is to talk less about academic statistics and more about who you are as a person.

“That’s not an academic question, and I think that’s something that a lot of candidates miss – that when you’re given an opportunity to talk about yourself, they don’t want to know your GPA [and] they don’t want to know your test scores,” she says. “They already know all those types of things. They want to know something memorable about you. So I would say, think of that question as more of a first date question. You’re not so much telling the interviewer why you’re so studious and hardworking. You’re telling the interviewer why people want to spend time with you.”

Blockchain Technology May Change the World, But What Are the Risks?

February 9, 2018
By Kinsey Grant

Bitcoin’s incredible price swings have gotten blockchain technology in the news. But what’s at stake when everything heads to a distributed ledger? Experts weigh in.

Not many mainstream investors knew what blockchain technology was a handful of years ago. But today, anyone who doesn’t know the word “blockchain” (or at least “Bitcoin”) must be living under a rock.

The applications for the open source, distributed ledger platform linked through cryptography and backing cryptocurrencies including Bitcoin are boundless, experts agree.

“We’re bullish on blockchain as part of a broader digital transition for public and private companies,” said Bill Briggs, technology chief at Deloitte Consulting. Blockchain could impact every industry Deloitte services, Briggs explained, from government services to healthcare to supply chain analytics.

“It certainly represents a new, unique and possibly disruptive way for people in underserved economies to store value, which they’ve really never been able to do before safely,” said Andrew Ittleman, founder and partner at law firm Fuerst Ittleman David & Joseph. “The investment side of crypto, while I know it’s important, that’s not really what motivates me.”

But with every promised revolution comes risk. What should investors know about the blockchain, its capabilities and its implications?

How big can this get?

Think about how disruptive the advent of cloud computing was 10 years ago. That’s how enormous blockchain could become in Briggs’ view.

Tech research firm Gartner Inc. predicts blockchain’s value-add will grow to $176 billion by 2025, Deloitte noted in a Tech Trends 2018 report in December.

If blockchain’s genesis is to be compared to that of the internet in the 1990s, “in terms of development you have to think about it in dog years,” said Blake Estes, counsel in Alston & Bird’s Financial Services and Products Group and co-leader of the firm’s Blockchain and Distributed Ledger Tech Team. Estes means that the pace of evolution is so rapid, it’s hardly useful to think about it in a typical time frame.

Right now, we’re around the year 1996 if the timeline for the internet
and that for blockchain were compared. But just six months ago, Estes said, we were only in about 1994.

“People are still getting AOL CDs in the mail,” Estes joked, suggesting there is still a far way to go until blockchain reaches its potential.

It’s important to note that, although Bitcoin is the headline-grabbing blockchain application, it is just a small part of a much bigger picture. Estes said Bitcoin is to blockchain as email is to the internet. It’s useful, but it’s a minuscule piece of the puzzle.

What can blockchain do for you?

The cross-border payment capabilities of blockchain technology also cross industries, Briggs explained, providing the capacity to merge operations among banking, financial services and trade finance sectors relatively seamlessly.

 

Bitcoin vs. the U.S. Dollar: Which Is the Real Bubble?

February 7, 2018
By Kinsey Grant

Is Bitcoin the bubble, or is Bitcoin the pin?

That’s the question some of the top minds in cryptocurrency have been asking as calls of a “Bitcoin bubble” grow louder. It’s hard to deny that Bitcoin was distinctly bubble-ish at the end of 2017, finishing the year up nearly 1,800% from where it started.

An increasing number of crypto leaders have called out the ability of digital assets to democratize finance and globalize market access, drawing sharp differences with it from that of fiat currencies based on the actions of a select few, former Federal Reserve Chair Janet Yellen included among them.

“Here you’ve got Janet Yellen telling not only normal people that they’re too stupid to understand the reasoning behind quantitative easing, she’s telling Congress they’re too dumb, that they don’t have any business looking into her reasoning for quantitative easing,” said Coindesk head of research Nolan Bauerle.

Bauerle explained that many leaders in the crypto world argue that it’s the dollar, and not Bitcoin, that’s a bubble. That’s because the Fed and other policy leaders are “devaluing the dollar that everyone is working for,” Bauerle said.

The argument ties in well to a key aspect of the founding ethos for Bitcoin and other cryptocurrencies: immunity from inflation. When anonymous Bitcoin creator Satoshi first established the coin, he created it such that there are only ever going to be 21 million Bitcoins in the world. In the minds of crypto evangelists, the finite supply means Bitcoin is immune to the orchestrated inflation that occurs when the Treasury prints more money.

“If you go back to a macroeconomic argument, there’s an argument there that fiat is a bubble. We don’t know how many U.S. dollars there are,” Bauerle said.

“Put it this way — one Bitcoin is still worth one Bitcoin. And how many dollars it’s worth is a reflection of the devaluation of the U.S. dollar, not necessarily the other way around,” Bauerle said.

He noted that a lot of the leaders in Bitcoin don’t view it as a bubble, but rather as the pin that will pop a larger, more ominous bubble — the fiat currency of the United States.

“It’s a matter of perspective,” he said. “Is Bitcoin worth more dollars because Bitcoin’s value has gone up, or is Bitcoin worth more dollars because the dollar’s value has gone down?”

It’s worth noting that Bitcoin has steadily shed value over the past few weeks, dipping as low as $5,947.40 on Feb. 6, according to Coindesk. That’s after the cryptocurrency soared to a high of $20,089 on Dec. 17.

The U.S. dollar index, which compares the greenback to a basket of other currencies, has moved lower about 2.8% since the start of the year. Bitcoin, on the other hand has decreased 47.3% in the same time.

Bitcoin could trade between $6,000 and $60,000 in 2018, simply because of its “hyper volatility” and reflexivity, said Ari Paul, chief investment officer and co-founder of BlockTower Capital.

“The higher Bitcoin goes and the faster it gets there, the more likely it is to crash,” Paul said. The reflexivity of the currency means that as it rallies, it invites everything from regulation to speculation to scams from bad actors.

By the end of 2018, Paul is looking for Bitcoin between $15,000 and $85,000.

But at the end of the day, the price of Bitcoin is irrelevant, said Andrew Ittleman, founder and partner at law firm Fuerst Ittleman David &

Joseph. Ittleman has focused his law career on fintech regulation, white collar criminal defense and anti-money laundering compliance.

“Nothing about that has changed from when Bitcoin was $100 apiece or $1,000 apiece,” Ittleman explained. It’s about “powerful ways to communicate, share value, send money,” he said, not a means to turn a profit.

“The downturn or the drop in value over the last few weeks in my opinion is more of a consequence of the $20,000 value just not being realistic at all,” Ittleman said.

“I just really have a hard time imagining a Bitcoin being able to hold onto a value of $19,000 or $20,000,” Ittleman said. “It just doesn’t make sense to me.”

 

Bitcoin is Booming in Miami. But can you buy a House with it?

January 26, 2018
By Rene Rodriguez

They gathered in downtown Miami — an estimated 4,350 Bitcoin believers — to trade pitches for apps and start-ups. They discussed and debated trends in cryptocurrency. They speculated about the volatility of Bitcoin, which shot up in value from $900 to $19,000 over the course of 2017 and is currently hovering around the $10,000 mark.

But despite the national stir created last fall when a $544,500 Edgewater condo was listed for sale in “Bitcoin only,” none of the panels or presentations at Miami’s sixth annual North American Bitcoin Conference focused on real estate. Although Bitcoin is the oldest and best-known of the nearly 1,500 kinds of cryptocurrencies currently available, real estate developers, brokers and analysts are cool on its use in an industry that is literally defined by physical assets.

In other words, if you’re hunting for a home, don’t worry that you’ll get outbid by a buyer offering cryptocurrency. At least not yet.

“I think it’s fine to buy Bitcoin, because high risks lead to high returns, and I believe in capitalism,” said Nela Richardson, chief economist for Redfin, a national real estate brokerage. “But when you come to buy my house, I’m going to need a currency that I can use to buy milk at the grocery store. I wouldn’t accept junk bonds or a lottery ticket as a payment. Any currency that drops 45 percent in value within three months, like Bitcoin has done, is not a currency that is stable enough for large transactions.”

According to Redfin, only 134 out of the site’s total 568,000 listings in December 2017 — a miniscule .03 percent — included a Bitcoin mention.

Created in 2009, Bitcoin is digital currency tracked on decentralized ledgers — called blockchains — that keep a real-time, immutable record of every transaction made around the world. Buyer and seller interact directly. Bitcoins can be purchased through a digital currency exchange or broker and are kept in a “wallet” that protects the user’s anonymity. And because the blockchain system is not centralized, security is considered to be significantly safer than current e-transaction software.

For now, at least, Bitcoin is not regulated by any bank, state or nation.

General awareness of Bitcoin and blockchains exploded in 2017 as the cryptocurrency’s value skyrocketed. Earlier this month, the stock price of Eastman-Kodak shot up 89 percent, to $10.70 a share, just a day after the company announced an Initial Coin Offering (ICO) to develop a blockchain system for photographers to secure the digital rights of their work.

Miami is one of the nation’s staunchest and most enthusiastic cryptocurrency hubs, and proponents of Bitcoin argue that cryptocurrency is a perfect fit for real estate. On Dec. 22, the first-ever Bitcoin-only real estate deal in Miami closed, with a buyer paying 17.741 bitcoin — the market equivalent of $275,000 — for a two-bedroom condo at 777 NE 62nd St. in the Upper East Side.

But some experts believe a lot of the hype around Bitcoin is just that — hype. The currency’s value fluctuates so much that the value of a Bitcoin transaction could either gain or lose thousands of dollars in value within a week’s time. In an interview with CNBC on Jan. 10, billionaire investor Warren Buffett warned that the cryptocurrency craze is destined to end badly, costing a lot of people a lot of money.

“We’re in an area of hysteria right now involving Bitcoin,” said Andrew Ittleman, a partner at the Miami law firm of Fuerst, Ittleman, David & Joseph. “There are a lot of people making claims about Bitcoin that they can’t substantiate and for the most part are not meant to be substantiated. I do see a lot of uses for cryptocurrency in real estate, but I don’t see the disruptive effect some people are promising.”

Waning favor?

Andrew Hinkes, a partner at the law firm of Berger Singerman who specializes in technology-related issues, said cryptocurrency is nearing the end of its initial wave of interest from Wall Street and investment by new ventures. Bitcoin still has a long way to go before it is widely embraced by the real estate industry.

“Nothing has really changed insofar as how virtual currencies are impacting real estate,” he said. “A lot of people saw tremendous gains in the values of their holdings in 2017. But now that the IRS has made clear how they want to treat the gains on crypto like Bitcoin, there’s uncertainty in the market as to how you sell them and find value. In South Florida, that’s traditionally in the ground. But if you want title insurance, or if there are any liens or taxes that are owed, those will have to be payed with fiat currency.”

A giant Bitcoin logo welcomed visitors outside the James L. Knight Center during the North American Bitcoin Conference held Jan. 18-19, 2018.

Although the Internal Revenue Service taxes Bitcoin capital gains — if you cash
out for a profit, the IRS gets a cut — there’s no procedure in place that forces people to report those transactions. (In November, the IRS ordered Coinbase, a platform for buying and selling Bitcoin, to turn over information on accounts from 2013-2015 that were worth at least $20,000.)

The current lack of regulations is one of Bitcoin’s biggest draws for its users. And despite suspicion that Miami’s real estate market is prey to money launderers, it can be a deal-breaker for real estate. For example, South Korea, the third biggest cryptocurrency market in the world (after Japan and the U.S.), has banned anonymous cryptocurrency transactions, fearful of the potential for shady business.

That uncertainty and lack of transparency, combined with cryptocurrency’s volatility, is making real estate developers and investors wary.

“Bitcoin is too new of a form of currency,” said Daniel de la Vega, a Realtor with Sotheby’s International. “Anything that operates in a gray area is not something I would want to associate with. I do believe in the future of cryptocurrency. I’m just not bullish on it short term.”

The Miami Association of Realtors reports that sales of luxury ($1 million and above) condos and single-family homes in Miami-Dade County surged 47 percent and 16 percent respectively year-over-year in December. But the market is still glutted by too much supply, which caused the average luxury sales price to fall 6.3 percent in 2017, according to Mansion Global.

Still, the need to sell expensive properties is not enough to make developers rally behind Bitcoin — at least for now. Gil Dezer, president of Dezer Development, said if a buyer made a Bitcoin offer right now on one of the multimillion dollar condos at the Porsche Design Tower in Sunny Isles Beach, he would turn them “If Bitcoin is so easily transferable to cash, why do they need to pay with that?” Dezer said. “Why can’t they transfer it into cash first and pay with that? The transverse effect of that is the seller receiving the money. If he wants Bitcoin, he can take the cash and buy Bitcoin. Why would you use Bitcoin in the actual transaction?”

Peggy Fucci, CEO of One World Properties, said she has yet to come across a buyer or seller interested in using Bitcoin as a form of payment, but she understands Bitcoin’s buzzy appeal.

“I think the general consensus from the developers I work with and represent is that the whole deal with Bitcoin and real estate is a marketing thing — a way to get exposure for your property,” she said. “I don’t see it as a real thing yet. Most people don’t even know about Bitcoin and cryptocurrencies in general. Eventually, it is something that will be inevitable. But right now, it’s too early. We don’t use it. Instead, people are riding the wave of a phenomenal stock market.”

Realtors wary

Some Realtors who have had first-hand experience with Bitcoin agree that cryptocurrency isn’t yet ready for prime time in the real estate field.

Edgardo Defortuna, president and CEO of the real estate firm Fortune International Group, said his company has been involved in two listings where Bitcoin was in play: A $4.6 million home on Sunset Island where the seller accepted Bitcoin (the house eventually sold for $3.8 million via conventional loan) and a Key Biscayne condo currently on the market for $1.5 million (the seller received and turned down an offer for $1 million in Bitcoin).

“Bitcoin was talked about a lot last year because of the appreciation, but it has scared a lot of people away in the last month or two,” Defortuna said. “Cryptocurrency could be a player [in real estate transactions] in the future, but I’m not sure this Bitcoin craziness is the way to go yet.”

But Charles Penan, executive vice president of the real estate investment and merchant banking firm Aztec Group Inc., takes a more flexible approach. He currently has a property for sale at 4141 North Miami Ave. in Miami’s Design District — a three-story, nearly 16,000 square-foot building — for $14.5 million. The seller, Remy Jacobson of J Cube Development, is accepting cryptocurrency as payment.

“Crypto is a very viable alternative to traditional financing — for the right buyer and right seller,” said Penan. “They have to be more entrepreneurial. Bitcoin does not work for institutions, because they are more transactional and want instant gratification. They don’t want to assume any risk of fluctuation.”

Others are already doing due diligence, preparing themselves for what they believe to be an inevitable and radical change in traditional real estate transactions. Beth Butler, general manager of Compass Florida, a technology- focused real estate firm, said her company isn’t accepting Bitcoin yet. But she’s currently researching the field, tapping experts to figure out the problems that need to be solved before cryptocurrency can be readily used.

“So far, people are very open to it,” Butler said. “The appeal is that blockchain could make real estate transactions more secure. You wouldn’t have the wire fraud or hacking fraud that has been plaguing our industry in the last few years. But there’s a lot more that needs to be defined on a large scale first. The concept of blockchain suggests to me that state law and regulators will have to adopt some kind of policy to accept it.”

An optimistic gathering

Bitcoin believers, however, remain undaunted. German Montoya, chief strategy officer for the Miami-based venture-building company Rokk3r Labs, said the volume and enthusiasm of attendants at the North American Bitcoin Conference — far bigger than the roughly 100 people who turned out for the inaugural edition in 2012 — is evidence that cryptocurrency is destined to take hold.

“For a long time, the only thing you could do with Bitcoin was buy and sell it,” Montoya said. “There are only a few coffee shops in the world that take Bitcoin, for example. The more Bitcoin is used for real things, the more this coin will become a real alternative to others.”

At the conference, the main exhibition hall was crammed with start-ups hoping to use blockchain technology for everything from Bitcoin ATMs to virtual reality. Dr. Gor Van Ek, a respected figure in the blockchain field, flew in from Australia to promote his latest endeavor, Bitcar, a platform that will allow users to purchase an interest in exotic, rare and classic cars — a way of investment that has been traditionally exclusive to the wealthy.

“This is the third or fourth year that I’ve gone to that conference, and I had never seen this sheer scale and number of people who attended,” said Hinkes, the attorney. “That signals a certain threshold of consumers have been reached. Bitcoin is starting to make an impact and insinuate itself into the mainstream.”

Many of the panels at the conference delved into upcoming regulation that would stabilize Bitcoin and other cryptocurrencies for both consumers and government entities. That kind of regulation, if successful, could presumably offset Bitcoin’s volatility and make it a more viable and dependable medium for large-value transactions.

“Once there are enough things to spend Bitcoin on directly, the real estate market could never be a reason to go back to the dollar,” Montoya said. “You could have a whole economy where you use Bitcoin to buy and sell and spend.”

The questions, for now, are how long that wait will be and whether Bitcoin’s seesawing value can stabilize. Six weeks after all the hubbub, that Bitcoin-only condo in Edgewater still hasn’t sold. On Jan. 24, the price on the listing was quietly raised to 37 Bitcoin.

Despite the apparent increase, though, the adjustment actually brought the value of the condo down in dollars — from $525,000 to $410,000.

Nursing Home Patient’s Family Can’t Revive Axed Jury Win

By Y. Peter Kang
January 17, 2018

Law360, Los Angeles (January 17, 2018, 8:54 PM EST) — A Florida appellate panel on Wednesday affirmed a trial judge’s decision to overturn a jury verdict in favor of the son of an elderly woman who allegedly died because of a nursing home’s negligence, saying the plaintiff’s medical expert’s opinion was contradicted by the evidence.

In a 2-1 ruling, a three-judge panel for the Third District Court of Appeal upheld the trial judge’s decision to set aside a jury’s verdict in favor of Robert Siegel in a suit accusing Cross Gardens Care Center LLC of providing negligent care for his mother, Sybil Siegel, which purportedly contributed to her death at the age of 88. The majority said Siegel’s medical expert, Dr. Lee Fisher, submitted a medical opinion that was contradicted by the patient’s medical records and that therefore his opinion should never have been presented to the jury.

The appeals court said the burden was on Robert Siegel to prove that the alleged negligence “more likely than not” caused the patient’s death.

“An examination of Dr. Fisher’s opinions indicates that, time and again, he drew inferences from the medical records that were not more-likely-than-not,” the 12-page majority opinion states. “Indeed, at critical points, his opinions are directly contradicted by the very medical records upon which they are purportedly based.”

In Fisher’s opinion, Sybil Siegel died of pneumonia and the nursing home’s medical staff had failed to properly monitor her and order her timely transfer to a hospital, but the panel said the doctor makes this assumption based on the fact that there were no entries in the nurse’s notes for a two-week period.

“The problem with this inference is that it is contradicted by the raft of medical reports indicating that Ms. Siegel’s condition was being constantly monitored, recorded, and reported throughout that period,” the majority said. “Dr. Fisher’s inference that the ‘gap’ in the notes signified that she was not monitored is worse than speculation: it is contradicted by the only evidence Dr. Fisher or the jury had.”

The majority also took issue with Fisher’s theory that Siegel could have lived for an additional three years had she received timely treatment, an assessment based on the fact that she had been previously hospitalized for pneumonia and survived.

“This is a total non sequitur,” it said. “It does not follow that because a person was admitted with pneumonia at age 60, 70, or 80 and survived that she will necessarily survive if she is admitted with pneumonia at age 88.”

The panel noted that Fisher never personally examined the patient so his assertion that she died of pneumonia is contradicted by the medical records, which state that the patient’s official cause of death was end-stage dementia and end-stage chronic obstructive pulmonary disease.

“Dr. Fisher’s opinion that pneumonia caused her death, which is based entirely on the medical records, but which is flatly contradicted by the medical records, is entitled to no evidentiary weight,” the court said.

In a dissenting opinion, Judge Robert J. Luck voted to reinstate the jury’s verdict, saying the legal principles for reviewing judgments notwithstanding the verdict does not allow the court to reweigh testimony and choose between conflicting evidence.

“After reviewing the conflicting records, listening to Dr. Fisher’s direct and cross-examination, and hearing the attorneys’ arguments during closing about why he should and shouldn’t be believed, the jury credited Dr. Fisher’s testimony in finding that the nursing home violated chapter 400, which caused the Siegel family’s injuries,” Luck said. “We should not reweigh Dr. Fisher’s testimony and substitute our view for the jury’s.”

Siegel had sought nearly $500,000 in damages, but the jury awarded a sum of approximately $6,100.

An attorney for the nursing home said he was pleased with the appellate ruling.

“We think the trial court and the Court of Appeal got it right,” said Christopher M. David of Fuerst Ittleman David & Joseph PL. “We think this opinion will go a long way in relieving nursing homes of being forced to prove negatives when defending themselves in court.”

An attorney for Siegel declined to comment on Wednesday.

Judges Thomas Logue, Edwin A. Scales III and Robert J. Luck sat on the panel for the Third District.

Siegel is represented by Douglas F. Eaton of Eaton & Wolk PL.

The nursing home is represented by Christopher M. David, Michael B. Kornhauser and Jeffrey J. Molinaro of Fuerst Ittleman David & Joseph PL.

The case is Robert Siegel v. Cross Senior Care Inc. et al., case number 3D16-600, in the Third District Court of Appeal, Florida.

–Editing by Jill Coffey.

Administrative Law Update: Calls for End to Chevron Deference

As 2017 draws to a close and administrative law practitioners reflect on the state of administrative law jurisprudence, one thing becomes clear: there are increasing calls, at both the federal and state levels, to do away with Chevron deference. The potential downfall of this modern era administrative law bedrock is something all administrative law practitioners should continue to watch.

A. A Chevron Primer

As administrative law practitioners are well aware, the Chevron doctrine describes the practice of the courts deferring to administrative agencies’ interpretations of ambiguous statutes over which an agency is delegated rulemaking authority. The doctrine was announced in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) in which the Supreme Court ruled that in instances where a law passed by Congress is silent or ambiguous with regard to an issue, the courts must defer to an agency’s interpretation of the law it is in charge of implementing unless that interpretation is unreasonable. Under Chevron, the court must defer to the agency even if the court finds that other interpretations of the statute are reasonable and even if the court believes that the agency’s construction of the silent or ambiguous provision is not the most reasonable among varying interpretations. As explained in Chevron,

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issues, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

476 U.S. at 842-843.

B. The Great Chevron Debate

Since its creation, the Chevron doctrine has been the subject of widespread debate. Those who support Chevrondeference often cite agencies’ expertise in highly technical areas of regulation where such knowledge is important to implementing a comprehensible regulatory scheme, such as environmental protection and pharmaceutical regulation. Supporters also fear that the lack of such expertise on the part of the courts will result in policymaking on a case-by-case basis. See generally, Hon. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J 511 (1989).

Parties on both sides of the debate recognize how the Chevron doctrine can impact the judiciary’s role in a system of government based on the separation of powers.  The debate is more than academic as the breadth of Chevron deference is often called into question by Justices on the Supreme Court. See Michigan v. E.P.A., 135 S.Ct. 2699, 2712 (2015) (Thomas, J., concurring) (Chevron deference “wrests from Courts the ultimate interpretative authority to ‘say what the law is’ Marbury v. Madison, 1 Cranch 137 (1803), and hands it over to the Executive.”); Arlington v. FCC, 133 S.Ct. 1863, 1877-1878 (2013) (Roberts, C.J., dissenting) (“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.”). Even the above-cited Justice Scalia, widely known as a supporter of Chevron during his tenure with the Supreme Court, questioned its bounds. See Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring) (questioning the validity of the related doctrine of Auer deference under which the Chevron doctrine was expanded to require courts defer to agency interpretations of ambiguous regulations).

Those opposed to Chevron deference also raise due process concerns. As explained by Judge Shepard in Pedraza v. Reemployment Assistance Appeal, etc. et al, 208 So.3d 1253, 1257 (Fla. 3d DCA 2017),

It ordinarily would be outrageous for a judge in a case to defer to the views of one of the parties. And it ordinarily would be inconceivable for judges to do this regularly by announcing ahead of time a rule under which judges should defer to the interpretation of one of the parties in their cases, let alone the most powerful of parties, the government. Nonetheless, this is what the judges have done. It therefore is necessary to confront the reality that when judges defer to the executive’s view of the law, they display systematic bias toward one of the parties.

(Shepard, J., concurring).

Newly appointed Supreme Court Justice Neil Gorsuch also expressed concerns over the effects of Chevron on the constitutional system of separation of powers during his time as judge on the Tenth Circuit Court of Appeals. As explained by Justice Gorsuch, “Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) (Gorsuch, J., concurring).

In his brief time on the Supreme Court, Justice Gorsuch has not shied away from questioning the bounds of Chevron deference. Recently, during oral argument in Digital Realty Trust, Inc. v. Somers, Docket No. 16-1276, Justice Gorsuch raised the question of whether it is proper to give deference to an otherwise reasonable agency interpretation if that interpretation was not the end product of proper notice and comment rulemaking under the APA. While such a question may blur the line between the issues of deference afforded to an agency in interpreting its statutory mandate and whether such interpretations were improperly promulgated under the APA, and thus unenforceable because of procedural defects, the extent to which Justice Gorsuch’s questioning results in an exception to Chevron remains to be seen.

C. Legislative and Constitutional Attempts to Eliminate Chevron Deference at the Federal and State level.

On January 11, 2017, the United States House of Representatives passed the Regulatory Accountability Act of 2017. Among its various provisions, section two of the bill, the Separation of Powers Restoration Act, would effectively repeal the judicially created doctrine of Chevron deference, which is considered a bedrock in modern administrative law jurisprudence. A copy of the House Act can be read here. Similarly, on July 18, 2017, S. 1577, also titled the Separation of Powers Restoration Act of 2017 was introduced in the Senate. The bill is currently before the Senate Committee on the Judiciary and a copy of the can be read here.

Both the House and Senate acts address Chevron deference. Specifically, instead of deferring to an agency’s reasonable construction, the Acts would amend the Administrative Procedure Act to require courts to conduct de novo review of “all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules” when evaluating federal regulations. However, critics are concerned that de novo review could wreak havoc on the rulemaking process and result in courts being split on issues which would affect the uniform application of regulations. It should be noted that similar legislation was passed in the House of Representatives in 2016 but did not make it out of the Senate.

Chevron deference has also seen attacks at the state level. For example, Florida’s Constitutional Reform Commission has proposed the addition of § 21 to Art. V. of the Florida Constitution. (Under the Florida Constitution, since 1968, every twenty (20) years the Constitutional Revision Commission is required to convene and examine the Florida Constitution for possible changes. Those proposals are then put forth to the public for a vote in the next upcoming election.). Proposal 6 would amend the Florida Constitution to add § 21 to Art. V which would read: “In interpreting a state statute or rule, a state court, or an administrative law judge may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.” Proposal 6 has already received a favorable vote from the CRC’s Judicial Committee and is currently before the CRC’s Executive Committee. Whether Proposal 6 ultimately makes the ballot for voter approval in 2018 remains to be seen.

Fuerst Ittleman David & Joseph will keep a keen eye on develops of this important issue. The administrative law attorneys at FIDJ have represented clients before numerous agencies at both the federal and state level. For more information on our administrative law practice group, you can email us at contact@fidjlaw.com or call us at 305.350.5690.

Federal Litigation Update:

On October 19, 2017, the United States District Court for the Southern District of Florida issued Administrative Order 2017-60, announcing several amendments to the Local Rules of the Southern District of Florida. The amendments impact procedures for filing trial and hearing exhibits, treatment of motions to seal, submissions of proposed orders with emergency and ex parte filings, page limits, requirements in pretrial scheduling conference reports regarding electronic discovery, timing of scheduling orders, requirements for filing a Mediation Report, notices of settlement, Attorney Discipline Rules, Local Admiralty Rule Governing Vessel Seizure, among other things. The amendments to the Local Rules went into effect December 1, 2016. A copy of Administrative Order 2017-60 and the amended rules can be read here and significant amendments are discussed in summary below.

A. S.D. Fla. L.R. 5.3 – Files and Exhibits

S.D. Fla. L.R. 5.3 was amended to describe the procedure for electronically filing trial and hearing exhibits, including new sections on mandatory electronic filing, exemptions from mandatory electronic filings, a required Certification of Compliance, sanctions for failure to comply, when compliance is not necessary, and the procedure for removal of exhibits. More specifically, pursuant to amended S.D. Fla. L.R. 5.3(b)(2), within ten (10) days of the conclusion of a hearing or trial, a party must file via CM./ECF: a) an electronic version of each documentary exhibit that the party offered or introduced into evidence; and b) a digital photograph of each non-documentary physical exhibit that the party offered or introduced into evidence unless otherwise ordered by the Court or if exempt under 5.3(b)(3). Upon such filing, the attorney for the filing party shall also complete and file a Certification of Compliance Re. Admitted Evidence form. S.D. Fla. L.R. 5.3(b)(4). The failure to timely comply with either the electronic filing requirements or the certification requirement may result in sanctions. S.D. Fla. L.R. 5.3(b)(5).

B. S.D. Fla. L.R. 5.4 Procedure for Filing Under Seal in Civil Cases

S.D. Fla. L.R. 5.4(b) was amended to clarify procedural ambiguities regarding the proper time for filing proposed sealed materials and addresses public filing of pleadings, motions, memorandum, or other documents that attach or reveal the content of the proposed sealed material. For example, under the amended version of S.D. Fla. L.R. 5.4(b)(1), in cases not otherwise sealed in their entirety, a party seeking to file documents under seal shall file a motion to file under seal in which the party shall describe the information or documents to be sealed “with as much particularity as possible, but without attaching or revealing the content of the proposed sealed material.” The rule was further amended to make clear that “[t]he proposed sealed material shall not be filed unless the Court grants the motion to file under seal.”

C. S.D. Fla. L.R. 7.1(a)(2) Motions, General

S.D. Fla. L.R. 7.1(a)(2) was amended to include “motions seeking emergency or ex parte relief or temporary restraining orders” as motions requiring proposed orders to be filed and submitted via e-mail to the Court.

D. S.D. Fla. L.R. 7.1(c)(2) Memorandum of Law; Page Limits

S.D. Fla. L.R. 7.1(c)(2) was amended to clarify that title pages preceding the first page of text, including “tables of contents, tables of citations,” shall not be counted as pages for purposes of this rule.

E. S.D. Fla. L.R. 16.1(b) Pretrial Procedure In Civil Actions

S.D. Fla. L.R. 16.1(b)(2)(K) was amended to require issues regarding disclosure, discovery, or the preservation of electronically stored information, as well as whether the parties have agreed to use the ESI checklist, be included in the Pretrial Conference Report. The ESI checklist has been added at the end of the local rules, although its use is only encouraged.

F. S.D. Fla. L.R. 16(b)(3) Timing of Scheduling Orders

S.D. Fla. L.R. 16(b)(3) has been amended to reduce the number of days within which the Court shall enter a Scheduling Order ninety (90) to sixty (60) days after the appearance of a defendant and from 120 to ninety (90) days after the complaint has been served on a defendant.

G. S.D. Fla. L.R. 16.2(f) Mediation Report; Notice of Settlement

S.D. Fla. L.R. 16.2(f)(1) was amended to provide for the filing of mediation reports by mediators who are not authorized CM/ECF users. Additionally, S.D. Fla. L.R. 16.2(f)(2) was amended to require notice of settlement to the Court pursuant to the requirements of S.D. Fla. L.R. 16.4 which was added in the recent amendments.

H. S.D. Fla. L.R. 16.4 Notices of Settlement

S.D. Fla. L.R. 16.4 was added to describe the requirements for notices of settlement. Under S.D. Fla. L.R. 16.4, should parties reach a settlement, then within two (2) days of the agreement being reached, a notice of settlement shall be filed jointly by counsel for all parties to the settlement. Alternatively, the parties may file a notice or stipulation pursuant to Fed R. Civ. P. 41, if applicable, but unless such notice or stipulation is filed within two Court days of the parties reaching a settlement, the parties are still required to file a separate notice of settlement.

I. Revisions to Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys.

Attorney discipline rules and disciplinary proceedings have been substantially revised into a single procedure in Rule 6. Under the amended rules, peer review and discipline rules have been combined into a single procedure. In addition, the rules regarding attorney reinstatement have been amended to require that an attorney seeking reinstatement after disbarment or suspension must first certify their good standing with the Florida Bar. Rule 12.9(b) has also been amended regarding the time frame in which a disbarred attorney may apply for reinstatement. Rule 12.9(c) has been amended to permit the Chief Judge to rule on petitions for reinstatement or submit it to the active Judges to be determined by majority vote.

Fuerst Ittleman David & Joseph’s litigation practice has a long record of successfully resolving high stakes cases on behalf of clients across a wide range of industries and in numerous forums. If you or your company is in need of representation in a case involving a complex legal dispute, contact us at (305) 350-5690 or contact@fidjlaw.com for a free consultation.

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Why the Trump Organization Can Play Dumb on Money Laundering

October 01, 2017
By Maren McInnes

Due diligence for buyers is minimal, but Treasury is tightening rules on shell companies

President Trump has been connected to allegations of money laundering as far back as 1987, when a Russian gangster forfeited five condos in Trump Tower that authorities said he purchased with ill-gotten gains. And the appearance of impropriety hasn’t faded: A Kazakh family who bought apartments in Trump’s SoHo building is facing laundering charges from their government as well as the United States.

Yet even with special counsel Robert Mueller now reportedly investigating even more questions surrounding laundering between Trump and Russia, legal experts say the Trump Organization’s habit of selling to suspicious individuals over and over may be perfectly legal.

In fact, a privately held company like Trump’s is “generally not” obligated to investigate buyers of its property, says Stefan Cassella, former deputy chief of the Justice Department’s asset forfeiture and money laundering section. But that may change, as the Treasury Department has been steadily building a body of regulations that increase the responsibility of sellers across the board.

Laundering money via high-end real estate is a fairly common practice among criminals and corrupt organizations. Criminals create a shell company, which they use to buy a property. When they finally sell it, the money is clean. The Treasury Department’s Financial Crimes Enforcement Network said in an August advisory that real estate can be “an attractive vehicle for laundering illicit gains” because it appreciates in value, “cleans” large sums in one transaction, and shields buyers from market instability.

A New York Times investigation in 2015 found that more than half of all condo sales at the Trump International in New York were by hidden buyers. A more recent USA Today study found such transactions with the Trump Organization have rose 70 percent since Trump’s nomination.

The law hasn’t historically made many demands on sellers of such properties. University of Pennsylvania Law School professor Stuart Ebby said while the doctrine of caveat emptor—”let the buyer beware”—dates to the 17th century, there doesn’t exist an equivalent principle for sellers.

“Logically, the sellers aren’t in a position to investigate or deter buyers of their property,” said Katie Johnson, general counsel for the National Association of Realtors. “They don’t really have any incentive or desire to do that. They want to sell their property.”

There is a concept called customer due diligence, she explained, and the NAR has been strongly encouraging their member agents to “know your customer” for years. The association has a document that outlines recommendations for their members to spot potential illicit financial activities such as money laundering.

The August FinCEN advisory said while real estate agents and brokers are not required by law to report suspicious activity, they are encouraged to.

Property owners themselves are confined largely by criminal law. “Regulations are not yet designed for the sellers of the property, but to say that there’s no obligation on them I think is going a little bit too far,” said Andrew S. Ittleman, partner at Fuerst Ittleman David & Joseph. If a seller knowingly sells to a criminal and receives money derived from a crime, he could be prosecuted.

Cassella added that sellers who are “willfully blind” could still be charged. And anyone receiving more than $10,000 in a cash transaction must report it to the IRS. “There’s not a bright line, but there is a line that can be crossed,” he said.

If the seller is a financial institution, however, they are required by law to check out buyers. The Bank Secrecy Act of 1970 explicitly authorized FinCEN to create anti-money-laundering regulations for financial institutions, including those, like mortgage lenders, that deal in real estate. They also must file reports of suspicious activity.

In an email, a FinCEN spokesperson noted the law defines financial institutions as businesses and professions that could be vulnerable to money laundering or financial crime—banks, brokers, insurance companies, and even casinos. (In 2015, the Trump Taj Mahal casino had to pay the Treasury Department millions for violating anti-money- laundering laws.)

The BSA statute that defines financial institutions was amended by the PATRIOT Act to include persons involved in real estate closings and settlements. However, Jack Hayes, counsel at Steptoe & Johnson, explained that FinCEN hasn’t published final regulations implementing specific anti-money-laundering-compliance obligations that apply to such persons as financial institutions.

In the wake of the PATRIOT Act, FinCEN called for public input, but after reviewing comments, “recognized the complexity of the problem and chose not to impose anti-laundering requirements across all persons involved in real estate closings and settlements.” Therefore, they started with the real-estate-finance sector first and let individual sellers be.

In May 2016, Treasury announced new actions to combat illicit financial activities, including a customer due diligence rule that said financial institutions have to collect and verify personal information on the real people behind companies. Then in August, FinCEN announced requirements that title-insurance companies identify the real people behind shell companies that pay “all-cash” for high-end residential real estate in big markets such as New York and Miami.

Despite these new requirements, Cassella wonders at what point Treasury will impose on the real estate industry the full complement of rules that have been imposed on banks and other financial institutions.

“Financial institutions resisted this for some time, but they’ve come around in the 30 years I’ve been doing this,” he said. “I would expect the real estate industry, including title insurers, real estate agents and developers, would [initially] resist in the same fashion,” but eventually come around as well.

OFAC Compliance Update: OFAC Settlement with Cartier Highlights Need for Robust Due Diligence by Retailers to Ensure Compliance With OFAC Regulations

On September 26, 2017, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) announced a $344,800 settlement with Richemont North America, Inc. d/b/a Cartier (“Cartier”) to settle Cartier’s potential civil liability for four alleged violations of the Foreign Narcotics Kingpin Sanctions Regulations (“FNKSR”) found at 31 C.F.R Part 598. The settlement is an important reminder to retailers that, although retailers of goods which are at a high risk of use in trade-based money laundering may not be specifically required to maintain an Anti-Money Laundering (“AML”) compliance program to prevent money laundering, they may still be required to conduct due diligence on their customers to ensure that they are not engaging in business with prohibited persons or entities and committing violations of US law in the process. A copy of the settlement announcement can be read here.

Generally speaking, pursuant to the FNKSR, US persons (which include corporations) are prohibited from engaging in business transactions with persons and entities identified as “Specifically Designated Narcotics Traffickers.” 31 C.F.R. § 598.203. As explained in 31 C.F.R. § 598.314, the names of persons identified as Specifically Designated Narcotics Traffickers are incorporated into OFAC’s List of Specially Designated Nationals and Blocked Persons (“SDN List”) which is available for review on OFAC’s website here.

According to OFAC, Cartier violated 31 C.F.R. § 598.203 when it exported four shipments of jewelry to Shuen Wai Holdings Limited in Hong Kong, an entity which has appeared on the SDN List since November 13, 2008. As explained by OFAC, on four separate occasions, an individual purchased jewelry from a Cartier boutique in California or Nevada and provided Shuen Wai’s name and mailing address as the ship-to party. Although the information provided to Cartier included the same name, address, and country location for Shuen Wai as appears on the SDN List, Cartier did not identify any sanctions-related issues prior to exporting the goods. In short, had Cartier taken steps to verify whether the entity to which it was asked to ship goods to was on the SDN List, it would have identified Shuen Wai and determined that such transactions were impermissible under the OFAC sanctions regime. In determining the settlement amount, OFAC considered this lack of minimal due diligence in light of the fact that Cartier deals in goods (jewels) that have long been at high risk of being used for trade-based money laundering.

The Cartier settlement highlights the importance of US retailers who export goods or conduct international business to implement basic due diligence programs to ensure OFAC sanction regime compliance. This is particularly true in industries whose products are at a high risk of use in trade-based money laundering. While the full scope of trade-based money laundering is beyond the scope of this article, generally speaking, trade-based money laundering occurs where: 1) a party attempts to launder narcotics proceeds by purchasing items (such as jewels or electronics) in the United States using US Dollars obtained through the sale of drugs, 2) exports those items overseas to the overseas supplier of narcotics or a shell company owned by the supplier, and 3) the overseas narcotics supplier then resells the goods for local currency. In this way the proceeds of the illicit sale of narcotics are not only moved overseas to the supplier but are also converted into local currency at the time of the goods’ eventual sale.

Additionally, the Cartier settlement demonstrates how OFAC sanctions compliance is separate and distinct from other obligations, or lack of obligations, under the Bank Secrecy Act. Put simply, the Bank Secrecy Act’s implementing regulations found at 31 C.F.R. Chapter X  require certain industries to maintain robust AML compliance programs in order to reduce money laundering risks. However, most US retailers either do not fall under the scope of the BSA or, as in the case of Cartier, are specifically exempted. See 31 C.F.R. § 1027.100(b)(2). Thus, although not mandated by federal law to maintain such programs, US retailers which engage in international transactions should develop policies and  procedures to identify prohibited transactions in order to ensure compliance with OFAC regulations, and avoid being unwittingly used in money laundering transactions.

Fuerst Ittleman David & Joseph’s Anti-Money Laundering practice covers a wide range of businesses and legal issues. Our AML attorneys advise a wide variety of financial institutions regarding their licensing and anti-money laundering requirements as set forth by the Bank Secrecy Act and individual state laws. The anti-money laundering law firm of Fuerst Ittleman David & Joseph has represented a wide array of financial services providers in IRS-BSA audits, OFAC licensing issues, grand jury investigations, state investigations, criminal and civil litigation, and commercial transactions. For more information regarding the Bank Secrecy Act or if you seek further information regarding the steps which your business must take to become or remain compliant, you can reach an attorney by emailing us at contact@fidjlaw.com or by calling us at 305.350.5690.