More cases involving damages from the BP oil disaster, mortgage fraud and privacy laws in regard to social networks like Facebook may be some of the hottest legal trends for 2011, along with the continued growth of personal injury, product liability and consumer protection cases. If the economy improves, there is also hope that real estate closings and developments might overtake foreclosures and debt restructuring, but, according to those we interviewed, it is more likely to occur towards the end of 2011.
Besides traditional personal injury cases, Mark Proctor, managing partner for Levin Papantonio Thomas Mitchell Rafferty & Proctor, sees growth in mass tort and class-action litigation in areas of pharmaceuticals and medical devices, particularly internationally, for his firm.
“We see a growth in international cases in countries where the tort systems are so difficult,” said Proctor. “We are looking at ways to bring to this country those cases against the U.S. manufacturers.”
Proctor also sees the BP oil disaster as one of the biggest trends on the environmental front with Levin Papantonio. “We will see a significant increase in BP litigation over a multi-year period as the oil spill continues to impact tourism along the Gulf Coast, especially in Florida,” he told the IN. “The science is still developing, and we don’t know the full environmental impact yet.”
The Mulit-Judicial Panel decided last summer to move lawsuits concerning the oil spill to New Orleans, La., the federal court nearest to the Deepwater Horizon oil platform that exploded on April 20, 2010, creating the largest man-made environmental disaster in U.S. history. The first case to be tried in that court will be in the spring of 2012, according to Proctor. Brian Barr, a Levin Papantonio partner, has been named one of only four attorneys in the country chosen to oversee claims against BP, Halliburton and Transocean for the Gulf oil spill.
Another trend will be in securities and anti-trust litigation, Proctor predicts. “Even though the markets are doing better, people were seriously hurt financially by security scams in the past. This area of practice will be big this year and next.”
Alan Bookman, senior partner at Emmanuel Sheppard & Condon and former president of The Florida Bar, sees more business litigation, but also predicts real estate law may make a comeback.
“The most work I saw in 2010 was business litigation, and before that I mostly have done real estate law,” said Bookman. “I am very hopeful that what we are going see, because of the emphasis of the community maritime park and the former sewer treatment plant, is an increase in development work.”
Emmanuel Sheppard & Condon has been involved in BP cases, as well. “We will also see a lot of continued BP litigation,” said Bookman. “I think there is still a number of folks out there who have claims against BP and have not been properly compensated. We will see these cases following over in the next couple of years.”
Aylstock, Witkin, Kreis & Overholtz has also been involved in BP litigation but works mostly with personal injury and consumer protection. The firm has a tremendous amount of work, according to partner Justin Witkin, because the drug companies are placing new drugs on the market that aren’t adequately tested or the companies fail to pass out information to consumers about the dangers that surface.
“We’re never out of work,” said Witkin. “It’s a story that is repeated again and again. Information about the risks or benefits associated with a particular drug becomes known to the manufacturer, but that information isn’t passed along to the public, and perhaps more importantly, to the doctors that prescribe these drugs to the public.”
Witkin does see new areas of practice booming in the coming year. “We don’t work in this area, but I think we will see a lot of foreclosure defense. There has been fraud with mortgages that has taken place in the financial industry. There have been forged signatures in connection with title work. There is a need for legal defense in that area.”
Witkin continued, “The area that is closer to us and in which we are interested is in light of the election of Rick Scott. One of the things Scott has proposed for making Florida more ‘business-friendly’ is legal reform. Specifically, he talks about is doing away with bad faith litigation.”
“Basically, when an insurance company fails to pay what they ought to pay on a reasonable basis, they can be held liable. If a company doesn’t pay me in a reasonable time, I can sue them for the excess judgment. Bad faith litigation is basically a check on insurance companies. Scott wants to remove these laws.”
Witkin believes such a change would take away all pressure for insurance companies to deal fairly with their customers. “Without these laws, companies can drag these cases out. They know that, more than likely, not everyone can afford a lawyer to begin with, and they know they have a chance to settle for less than what their customer may be actually owed. It will be really interesting to me whether the public can see through the rhetoric of legal reform. It will be very much a topic in 2011.”
Focusing mainly on personal injury and wrongful death, attorney Autumn Beck with Kerrigan, Estess, Rankin, McLeod and Thompson, saw in 2010 the same trends as other local attorneys. She said, “The biggest thing in 2010 was anything relating to the economy, mostly bankruptcy, foreclosure and consumer protection issues. We will see this litigation continue in 2011.”
However, Beck sees in the upcoming year a new area of practice growing due to the growth of social media on the Web. “As Facebook and social networking sites become even more popular, there are going to be more questions and more problems regarding the use of personal information. There will be a lot of challenges to how privacy laws are interpreted for individuals,” Beck said.
A few of our hometown attorneys don’t expect much difference in their practices in the upcoming year.
Todd LaDouceur, a partner with Galloway, Johnson, Tompkins, Burr & Smith, said, “We believe the biggest areas of practice for 2011 will continue to be in the foreclosure and banking areas as well as corporate restructuring.”
LaDouceur also sees the flux in tax law making estate and tax planning important. He hopes to see the economy gradually improve over this year, which he believes will lead to more legal work in real estate and business planning.
Brian Hoffman, an attorney with Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, specializes in real estate litigation, business litigation and probate. He agrees with LaDouceur.
“As far as 2011, I think it is going to mirror a lot of 2010 and be very collection oriented, but near the end of the year, I expect to see a shift to what we call ‘front-end work’, work that follows a good economy. Once the economy booms, there will be legal issues that will need taking care of. If the economy doesn’t pick up, then we will continue to see more of same collection-oriented work as we did in 2010.”
Most real estate foreclosures are handled in South Florida, especially with the larger banks, according to Hoffman. The high number of foreclosures surface many legal issues. When foreclosures are contested, banks are obligated to show a great deal of paperwork to finish the process, which can take months and sometimes years to finalize.
Hoffman does, however, have better predictions for the future. He said, “I think everyone has been saying that the real estate industry hit the bottom at the beginning of 2009. I don’t think we are going to see a sharp incline this year.
“You will have a gradual uptake, especially regarding real estate. It may take up to five to 10 years, but we are now moving up.”