Florida Attorney James L. O’Leary is available to speak to organizations across South West Florida on the following topics:
1. Amending Florida’s Constitution: The Role of the Courts
In this activity, participants learn about the methods of amending Florida’s Constitution and the role of the courts in reviewing such proposed amendments.
2. Judge for Yourself
In this activity, participants analyze the role of appellate judges and evaluate the conditions under which they should be retained or removed from the bench.
3. How to Judge Judicial Candidates
In this activity, participants will be asked to identify the qualities and characteristics that are most important in selecting judges.
4. Could You Pass the Test?
In this activity, participants learn about their role as citizens and increase their knowledge of the U.S. and Florida constitutions.
5. What’s Not in the Bill of Rights
In this activity, participants learn about the first 10 amendments to the U.S. Constitution and the process for amending the Constitution. Participants will consider proposing a 28th amendment.
6. Is It Unconstitutional? The Case of the Scarlet Tag
In this activity, participants will review the rights guaranteed in the Bill of Rights and examine some factors to determine if a hypothetical law violates the U.S. Constitution.
7. What the Law Means
In this activity, participants will review the role of the judge in the judicial branch and how this branch/official is different from other branches of government and other elected officials.
8. Beyond Labels?
In this activity, participants explore the ways labels are used to explain judicial decisions. Additionally, they learn about the meaning and importance of judicial independence as well as threats to judicial independence in our democracy. Three handouts and a PowerPoint are included. Estimated time to present: 30 minutes. Below are the links to an overview of the activity, which will guide your presentation, and all accompanying materials including a tip sheet on making a Benchmarks presentation. The overview will guide you in the timing and delivery of the activity.
To book James L. O’Leary, Attorney at Law, to speak to your organization, call 239 947-8900.
Since courts were first created, there has been paper. A lot of paper. Copies. Lots of copies. Staples, again lots. And envelopes. The legal system has to be one of the worst in terms of overuse of paper copies for this, that and everything in between.
Florida attorneys no longer have to print out their complaints, documents, exhibits, motions, notices, requests, subpoenas and everything else we do. In the past we had to print out the original, sign it, make multitudes of copies, staple, mail everything out, and even include return envelopes so we can get copies of what we file back. The redundancy of paper in the system has been a real problem in my opinion, requiring lots and lots of courthouse filing rooms, personnel and expense to manage.
However, effective April 1, 2013, all Florida courts use e-filing. Now, when I draft a complaint, motion, notice, etc., I just save it from Word as a Pdf file, log in to the state’s e-filing portal and upload the document to my case, then e-mail it to opposing counsel. This is a tremendously revolutionary change in our judicial system and one that should ultimately result in increased efficiency in case management for attorneys and courts across the board.
By reducing the amount of time and expense that litigants have to waste on things like paper, things that do not relate to the core issues in a dispute or transaction, our judicial system can more effectively manage the important work that we do. This important work includes both the protection of individual rights and enforcement of duties, but also the corollary right to effectively participate in our system of justice. The days of clerks wheeling in carts filled with files and folders will soon be over, and attorneys and judges will be able to better focus on the documents that we need to litigate and adjudicate cases respectively.
When a student exhibits bullying behavior it is a risk factor for future potential violence. Parents, students and teachers need to all be open and honest about bullying problems and report any problems to the school’s administrative leadership. Kids typically bully other kids because of emotional problems that can range from anger, fear and low self-esteem. A trained counselor can work with the student to turn them around at an early juncture and thereby avoid future potential harm to others. By ignoring these signs and symptoms we set ourselves up for disasters that result in serious incidents involving physical injury, property damage or in the worst of cases, death.
Two new lesson plans for the Justice Teaching are available on bullying. The first lesson plan, “The Truth About Bullies,” teaches students about the characteristics of bullies. This lesson plan also offers tools for addressing bullying conduct in school.
The second lesson plan, “Bullies: Who Bullies Are, What Bullying Is, and How We Stop It,” teaches students what types of conduct constitute bullying under Florida law. This lesson also offers tools for addressing bullying conduct in school, and presents the long-term consequences of bullying.
The second lesson plan provides a link to the policy on bullying for each school district in Florida. The Florida Statute that governs bullying in public schools states that “Distribution of safe schools funds provided to a school district in fiscal year 2010-2011 and thereafter shall be contingent upon and payable to the school district upon the school district’s compliance with all reporting procedures contained in this section.”
As a trained Justice Teaching volunteer, Mr. O’Leary is available to speak to students on these important lessons and practical application in the real world of our schools. The goals of public outreach law related education is to help improve the health, safety and welfare of our most important asset, our children, as they grow and develop through our school system. If you are interested in scheduling Mr. O’Leary to speak at your school to lead a session on bullying and school safety you may call (239) 947-8900.
On March 18, 2013 I will once again be lecturing at Florida Gulf Coast University. Over the past three years it has been an honor to be a guest lecturer at FGCU. I take my opportunity to address the students very seriously. I value education very highly and find the opportunity to share some of my experience, knowledge and training to be extremely rewarding.
This spring I will once again be lecturing on Florida torts, product liability and general principles of negligence, practice and procedure. This will include an overview of the history of the development of the tort of negligence up through the current state of the law. I also enjoy giving the students some practical education in the preparation of a lawsuit, pleadings, discovery and trial procedures, including the anatomy of a negligence trial.
Perhaps most importantly, I try to close each presentation I give, whether it be to elementary school students, middle school, high school, or college age students, with a sincere message underscoring the critical importance of academics. This includes a reinforcement of the need for lifelong learning, developing the love of learning, reading and self awareness. The higher purpose of our education is to help build a safer, healthier, happier and sustainable world. These overarching principles are cornerstones of all education, and even though I go into the schools or university with a substantive education lesson on the law, I always want to zoom out to give the students a view from above so we can together look at the big picture of what we all should be trying to do as citizens of the United States of America. Being a volunteer participant in our public education system across the board has been a very rewarding activity in my journey as a civil trial lawyer and one I fully intend to continue my commitment to.
Today a national tragedy occurred at Sandy Hook Elementary in Newtown, Connecticut. Innocent people, children, were killed. Who among us is not disgusted at the thought of this monster who did this violence.
As a father of three school age children, my whole heart, my prayers, and my thoughts are with the families and friends of all of the innocent victims of this senseless tragedy.
The rise of extreme murderous violence is among us and we must all raise our awareness of this deadly risk to our humanity. There are more gun magazines than any other subject, topic or hobby at many grocery and drug stores across America.
We are out of control and it appears it is only going to continue to get worse. Our society has become addicted to, as Carlo Strenger would call it, the global infotainment system with all its quick fix media that is turning many into thoughtless animals.
It is high time we return to our fundamental values of caring for one another, including that kid down the street that seems to be off. We all need to watch out for each other. Perhaps our greatest achievements as human beings can be our attention, caring and love for others. Let us begin again. Let us work a new trend, one toward safety, security and more peace in our streets and neighborhoods.
Our personal actions must begin at once. A small act, one of kindness, concern, love or support for another person in need can ripple through our communities. A process that may join with other similar minded people connecting us toward a higher purpose: the health, safety and security of all mankind.
Today, Friday, December 14, 2012 will forever mark a senseless human tragedy. It should never be forgotten. This terrible event must mark the moment where we decide to pivot, take action, and all work together to watch what is going on and really think about how to attend to, care for, and love another. Our actions will be the only measure of how much we care.
Since 1951, Florida law has granted a patient access to his or her own medical records and has required the health care practitioner who created the records to maintain the confidentiality of the records. Two primary sections of Florida law address medical records and grant patients access to their health information.
Florida Statute 456.057, deals with the confidentiality of, and patient’s access to, medical records created by specified health care practitioners, including medical physicians. Section 395.3025, F.S., addresses the confidentiality of, and patient’s access to, medical records held by a Florida hospital. In addition to sections 456.057 and 395.3025, a number of statutory provisions and administrative agency rules provide additional confidentiality and patient access for specialized individual health information.
Some medical offices will provide you with a copy of your medical records free of charge. However, some will not and if you are in need of obtaining a copy of your records, you should know what your rights are as to how much a provider can charge you to duplicate your records.
The Florida law governing the cost of duplicating records is the following:
64B8-10.003 Costs of Reproducing Medical Records.
Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of
Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the
patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical
records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the
reproduction of medical records.
(1) Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such
release upon payment by the requesting party of the reasonable costs of reproducing the records.
(2) For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports
shall not be more than the following:
(a) For the first 25 pages, the cost shall be $1.00 per page.
(b) For each page in excess of 25 pages, the cost shall be 25 cents.
(3) For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than
$1.00 per page.
(4) Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs. The phrase “actual
costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs
associated with such duplication.
“It used to be that the a certain segment of the very wealthy understood that in return for their good fortune and the protection of America that they would pay more in taxes so that the less fortunate, i.e. the aged , the infirm and the poor among us, would have a better chance at the pursuit of happiness. In the eighties this axiom of American democracy was deemed obsolescent and the accumulation of obscene amounts of wealth, without regard for its impact upon the environment or the American body politic became the new thinking.
Social Darwinism thereafter was resurrected and multinational companies assumed greater and greater control over the American political system and the American Judicial system. Unions were demonized, regulatory agencies were understaffed and underfunded and the Federal and Supreme Courts were hijacked.
The last bastion in the crosshairs of the multinationals’ artillery is the right to trial by jury in the State Courts. Through outright falsehood spread by captive media conglomerates and the castigation of trial attorneys, this New Oligarchy has almost reached its goals of unbridled commerce, obscene accumulations of wealth by the few , and complete socio -economic control of our American society to the detriment of our children and grandchildren.
WE TRIAL LAWYERS ARE THE LAST BEST HOPE FOR An AMERICA THAT IS TRUE TO ITS PROMISE AS THE LAND OF THE FREE AND THE HOME OF THE BRAVE. THIS IS OUR TIME TO STAND UP AND BE COUNTED IN THIS BATTLE FOR THE HEARTS AND MINDS OF AMERICA. OUR CHILDREN AND GRANDCHILDREN DESPERATELY NEED US TO DO SO.”
This message came from a colleague of mine in Massachusetts, Paul Kenney, and since I found it inspirational it rings true as a fellow trial lawyer, I thought I would post it here. Yes Paul, I will keep the faith, and thank you!
Could this be what our courthouse looks like someday soon?
A press release was just issued today from the Collier County Clerk of Court. The headline is “Expect Delays at Clerk of Courts’ Office.” The following is what the press release stated:
“The Florida Legislature recently voted, and Governor Rick Scott signed a budget, to cut the Clerk of Courts budgets by 31M, statewide, translating into a 7% decrease in funding for each county clerk. Over the past 3 years, the Clerk of Courts in Collier County has reduced its budget by approximately 25%. In that period, the number of clerk employees has been dramatically reduced, satellite offices have closed and customer services eliminated or cut back. It is expected that in the next fiscal year, the citizens of Collier County will experience more of the same. The Clerk’s office is already dealing with delays in the Recording Department due to increased volume and reduced staffing. That scenario is expected to play out in all court departments, especially Civil. The Clerk is currently looking at ways to deal with the additional budget cuts while maintaining a level of access and service that is acceptable, although it will not be the same level of service that customer are used to receiving in Collier County. Dwight reflected “I’m afraid it is going to get worse in the new fiscal year, which begins on July 1st . I ask citizens for their patience and understanding AND TO EXPECT DELAYS! For more information contact: Robert D. St. Cyr, Director of Community Outreach Clerk of the Circuit Court, Collier County 3315 Tamiami Trail East, Suite 102, Naples, FL 34112 Telephone: (239) 252-6879 Robert.StCyr@CollierClerk.com, www.collierclerk.com, April 26, 2012.”
This is bad news for citizens in Florida. The civil justice system is the fabric that holds our democracy together. From all walks of life, from all sectors of the economy, and from all areas of government, we all rely on, expect, and deserve to have an effective and fully funded court system to establish justice. This is not the area of government to cut. This is a very bad public policy decision by Governor Rick Scott and his administration. Furthermore, it is my belief that this type of measure will have a boomerang effect on our state and local economy. Without an efficient and effective judiciary, the rights of citizens and local businesses are at stake and may result in more people losing their jobs, more businesses being unable to get the assistance they need to keep operating and keep people employed, and thousands of valid legal claims from being paid by parties that have the capital to pay meritorious claims that will now be delayed and potentially irreparably damaged.
Since putting a post on Facebook earlier this week in reference to my shock over learning about the Florida law that made it illegal for homosexuals to adopt children I had spoken with a couple of people that had basically inquired why do I care so much about that or why would I even put something like that on my wall and so what I did was I wanted to give it some more thought and basically what it comes down to is, is I don’t particularly care more or less about homosexuals than I do for anyone else in this country, any other citizens, and I do believe that all of us have the same fundamental human rights that are granted to us not by the government or by anyone else but as a result of natural inalienable rights which are given to us as a matter of natural law through our ultimate creator or God or higher level of consciousness as human beings.
And so to find out that Florida is the only state in the entire country that has a law outlawing adoption for gays, for homosexual people, just made me realize that such a law is really discrimination against these people who otherwise are supposed to be equal under the law just like anyone else. For that matter the entire political movement whether it be people in the Tea Party or otherwise who are campaigning on politics of discrimination against gay people whether it be riling up crowds to get them fired up in an anti‑gay fury for political reasons, whether it be anti-gay marriage or anti‑gay adoption in this case; this fundamentally goes against everything our Declaration of Independence and our constitutional principles of equality under the law stand for. And so I’m very disappointed in that movement and the people who are behind that.
Secondly I think that it’s an injustice to the good, loving, hardworking people who happen to be gay that they are not allowed to adopt children or not allowed to be married for that matter. I don’t advocate for gay people; I don’t personally subscribe to their chosen lifestyle; however I do feel that what is natural for them, and how they express love, is no reason for the government to discriminate against them and say that they are not entitled to the same rights and privileges of every other citizen of this country. And therefore I think someday whether it’s 10 years from now, 100 years from now or 200 years from now, American citizens will someday look back on this issue as we now look back on issues such as the fact that women at some point earlier in this country’s history did not even have a right to vote. How we look back on now the ugly fact we were a nation with slavery, holding human beings in slavery for involuntary servitude, which goes against every type of fundamental human rights law in this country and in this world. And ultimately Abraham Lincoln was the one who said in the Gettysburg Address that that concept did not square with what the fundamental principles of the Declaration of Independence were and that ultimately whether it’s slavery, or not giving women the right to vote, or not allowing in this case gays to get married legally or to adopt children legally, a country which is set up on foundational principles of equality must stand true to those principles and apply them uniformly and equal to everyone. Otherwise we are in our own sense, in our own country, being hypocritical in saying that we stand for equality but are not actually practicing according to our stated constitutional principles of law.
“Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education alone will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.” U.S. President Calvin Coolidge.
As I reflect on my past in my roles as an attorney and just as a person and now as a father and a husband as well as a son and a brother and a friend of others it makes me think of this favorite quote of mine. Persistence and determination alone are omnipotent. Talent and skill and knowledge, good looks or the ability to speak well or write well may be important but none of them are really what is most important. One of the most important factors in our happiness and “success” in life, whether it’s in law, in life as a person, or in our ability and capacity to love others is our ability to remain persistent and determined to continue to have an open mind, remain flexible, and work hard and think long term about what our goals really are in life and what we are really trying to do.
Persistence & Determination in Law
So as an attorney in law ultimately I am always looking ahead towards how can I help people who become clients to achieve the goals that we set together in terms of trying to work towards a fair and equitable resolution of their case. For purposes of preparing a case to present before a jury at trial, ultimately looking and analyzing what are the key facts that establish what the defendant did wrong in a case and crafting the argument to summarize and clarify and present those facts in the most reasonable and clear-cut and honest and truthful way. I’ve always said that if you don’t have the truth going for you in a trial you might as well pack up your bag and head home and voluntarily dismiss your case and explain to your client why you cannot go into trial for them and I do that up front and decline to take cases or clients where I don’t have the truth going for me from the beginning. So in the law and as an attorney, persistence and determination play a critical role in helping to establish the true facts of the situation and cut through all the complexity and barriers that defendants and their interests that represent them often try to place before us, the roadblocks that are put there to avoid getting to the truth.
Persistence & Determination in Life
As an ordinary person, persistence and determination has played a major factor in my life in my ability to continue to move forward with my education and personal goals. Both as a young man getting through high school, college and law school and working hard to try to achieve grades and passing exams and getting through the formalities to become an attorney, start a business, and just to try to live a healthy, happy, and responsible life. To this day and as I look forward I feel persistence and determination alone are sort of the driving factors that will allow me to continue forward and try to do the right thing and be true and honest to my friends, my clients, and my family.
Persistence & Determination in Love
Although it may sound flaky, persistence and determination in the area of love, and ultimately what I’m trying to do with my life, with not only my family, my friends, my clients, myself and with my fellow citizens and people everywhere is to love people deeply, truly and honestly and try to help them, encourage them and support them in a way that clarifies and cuts through all the surface attitudes and behaviors and get to the heart of what love is all about.
Often times in personal relationships there can be highs and lows and ups and downs, miscommunications, misunderstandings, emotions that can play a role in damaging a relationship and I’m a big believer in maintaining open and honest communication not just with clients, not just with friends, not just with family, but with all people to try to maintain the integrity and the love of the relationship and the fairness and the friendship. I have learned that it is also important to maintain a healthy and deep felt love and respect for yourself and keep your own commitments and do what you feel is truly important for you, which is why I’m even sharing this with you.
Whether it’s in the areas of the law practice, or in life as a person, or in family and friendship relations, love plays the main role behind the scenes of ultimately what I’m trying to do with my life. To try and help people and be a fair, honest, and truthful person. Hopefully, someday at the end of my life I would hope that my family, friends and clients and anyone that I may have met or touched would be able to say that I loved them in my own way in our relationship and hopefully helped them in some way and in that sense lead a good life and made the world a better place for others. Press On in Law, in Life, and in Love!
Court Reporter: Will you raise your right hand? Do you solemnly swear or affirm to tell the truth, the whole truth, and nothing but the truth, so help you God?”
Witness: I do.
Why do we have witnesses in depositions or in trial take an oath? The simple answer seems so obvious, because we want to get the true facts about any given situation involved with a case or other legal proceeding. However, the public policy behind this rule for witnesses goes to the bedrock foundation of our entire system of justice. It is very unfortunate that some people would lie under oath. For an attorney, it is one of the most frustrating things to experience, and frankly, one of the most discouraging things to see happen. I strongly believe that any witness, whether an eyewitness to an accident, a plaintiff or defendant in a lawsuit, or an expert witness, should always tell the complete truth in accordance with their legal duty. Fortunately, most of the time, we hope, people do tell the truth. Witnesses who alter the truth in subtle ways are still committing perjury, because they are not telling the whole truth. When a witness lies under oath, it not only degrades the integrity of their credibility, it degrades the credibility of the entire case, whether plaintiff or defendant.
It is better to just tell the truth, the whole truth, and nothing but the truth, than to walk around always knowing that you lied under oath. The facts are the facts. There is no reason to degrade your credibility, not only just as a witness, but as a person, as a human being, as an American Citizen. Our nation is strong because we are a democracy, because we believe in freedom, in equality, in fairness, and in truth. When one person, in one case, tells one lie, or alters the truth even in some way, he or she is degrading the vitality and integrity of our very way of life, of our U.S. Constitution, and should be ashamed of themselves.
Ultimately, one of the most important reasons we have a jury system is because a fair and impartial jury is the ultimate lie detector. When a person lies, they will usually be squeamish, somewhat uncertain, defensive, or even hostile in extreme cases. However, even slick well educated professionals may violate their oath, and a jury is the backstop to detect such injustice. Nobody is perfect. We all have our defects, our less desirable character traits, our “skeletons in the closet,” this includes jurors. Potential jurors also take the oath, and their oath is equally as important, because if a potential juror honestly does not feel that, given the facts of the case, they could be fair and impartial, they should say so. There may be a different case starting in a different courtroom where they could be fair and impartial, just not in the particular case before them.
I feel it is better to be honest, even if it means admitting to a mistake, than to violate your oath and lie. If every single witness and juror in America took this approach, our justice system, and our entire nation, would be stronger for it. A final note, many times people may be a bystander to an accident, or otherwise called upon to be a witness through a subpoena, and may not really want to get involved. I mean really, who wants to be a witness in a lawsuit? Probably nobody. But if you are ever called upon to be a witness, or to be a juror, it is a time to stand up as an American, to be patriotic, to be honest, and tell the truth. In my view, if you seek the truth,, and if you tell the truth, the truth will set you free.
This past week at my Rotary Club meeting we heard from the Superintendent of Lee County Schools about all of the programs that attempt to deal with the enormous challenges facing our public K-12 education system here in southwest Florida. One thing that struck me, and has been on my mind for so many years, is the idea of how do we motivate kids to want to learn? We are spending so much money in Lee County busing children from distant areas of the county to schools half way or more across the county. Tens of millions of dollars go into the busing program in an apparent attempt to equalize and improve the schools state grade. Our challenging issues in raising our youth however go far beyond busing, and we know that even some kids are going to school hungry. It is doubtful a child can be truly motivated to learn if they are hungry, which is why my Rotary District 6960 is planning to pack one million meals on May 14, 2011 to give to these kids and their families.
I would like to see less busing, saving the fuel costs, saving the emissions of these massive vehicles, and focusing on letting families have their kids go to the schools in their neighborhoods. The schools should all receive equal funding, and this will allow the teachers and support personnel to have more money to work with to benefit the children, increase teacher salaries, and improve the overall safety and security of the school. Local communities take more ownership in their neighborhood school, allowing them to take pride in their unique campus activities. By improving our education system, motivating children, and developing intelligent and productive young adults, we can fight the core problems of why kids are going to school hungry right now. This is because I believe a better educated and motivated person is more likely to enjoy a good career and be able to provide for his or her family, thereby eliminating future generations of children going to school hungry.
Even with an improved approach such as this, we continue to face the ultimate question: how can we better motivate our youth to want to learn. We are living in an age when the Internet is providing such amazing, electric, and exciting avenues of learning. If only a student has the desire to learn. Instilling this desire should be one of the, if not the, number 1 priority of our educational system. This is not to say we already do not have some fantastic educators out there who are already doing this, and thankfully we do, and these critically important people are some of our nation’s most precious human assets. A personal computer or mobile device can not instill this human desire to learn. I followed the story recently of a young man in Naples who was arrested for breaking into his school’s computer, changing his grades, and was charged with having photos of child pornography on his computer. This youth was obviously motivated to learn about computers, a good thing, but got off track and just needs to get his head straightened out. The judge is following him closely and I trust he will be rehabilitated, but he needs strong encouragement, love and support in making his turn around and moving in the right direction. I don’t know this young man, but am behind him and the judge 100% in getting him rehabilitated and motivated to get back on track. Instead of hacking into computers, he can use his love and motivation for computers and the Internet to learn more about HTML 5 or some other aspect of his interest in technology to build a solid career for himself. Books are still a great way to learn and the public library is the best spot to be for a young person interested in learning. This motivation to get and stay on track can not come from a computer, instead, these efforts must come from sincere caring, love, and support of a fellow human being who is genuinely interested in the well being of the child.
While we are all working in our various occupations, professions, and vocations, we can help support our local schools, our teachers, administrators, and our students. The success of our educational system can not merely be gauged by a student’s FCAT, ACT, or SAT scores, or whether a school is an A or an F school. The health of a classroom can be felt when sitting in with the teacher and students, feeling the energy, or lack thereof, and looking into the students eyes, and teacher’s eyes, to see if there is a feeling of strong caring, love, warmth and excitement of about the idea of education and learning, of growing as a human being to a higher state of understanding of our world and how we must work together to serve humanity. I urge you, encourage you, and challenge you to get involved somehow in motivating a youth to get excited about learning, to help care for our children, support our school system, and make our community and world a happier, healthier, and safer place to live. Thank you very much