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Legal Trends for 2016

We asked several of our Top Attorneys, “What trend will have the most impact on your practice in 2016?” Here are their responses.

John Arrastia, Jr.
Alternative Dispute Resolution (ADR)
Arrastia Capote Partners
I expect to see the continued increase of arbitrated matters in 2016, especially in larger domestic commercial disputes as well as international matters. Several important factors are responsible for these trends. The first is the courts’ continuing acceptance of arbitration as an alternative dispute resolution mechanism, including having the arbitrators decide many of the threshold issues. Second, there has also been a lot of clarification regarding the role and scope of arbitration in the last several years with the U.S. Supreme Court issuing some important decisions. Third, practically speaking, the arbitration forums have made a greater effort to have a presence and provide resources in Miami for both international and domestic arbitration, in keeping with its position as a world business hub. Lastly, the executive and judiciary branches are making South Florida a hospitable place for arbitration, with the Eleventh Judicial Circuit creating an International Commercial Arbitration Court and the Florida Legislature revising and updating the Arbitration Code. I think that these points dovetail with an increased familiarity with arbitration among parties and their counsel to support a continued increase in larger 2016 arbitrations.
Donna M. Ballman
Labor and Employment
Donna M. Ballman, P.A.
The criminalization of employment is the biggest trend in Florida law that will affect employees in 2016. Florida’s new Computer Abuse and Data Recovery Act has zero protection against employer unauthorized access of employee computers and devices. It only protects computers owned by businesses. It’s meant to prevent hacking, but there’s some nasty language in there that allows employers to sue employees for any “unauthorized” access of a computer. Your “authorized” access terminates immediately upon the cessation of your employment. So if you are fired and then print out the emails you sent to HR complaining about discrimination or blowing the whistle on illegal activity before you leave, you can possibly be sued. Employees may have to print out their evidence of discrimination or whistleblowing before they get fired. This new law accompanies some federal laws that employers are already trying to use to put employees in jail. The Computer Fraud and Abuse Act is also a law that was geared to hackers. The National Stolen Property and Economic Espionage Acts have also been used against employees. Employers are successfully prosecuting former employees if they think trade secrets were stolen. Basically, your employer wants to make violating your trade secret or confidential information agreement a crime. 
This trend toward criminalization, along with increased imposition of non-compete agreements on everyone from the CEO to the janitor, is a frightening trend that, if allowed to continue, will result in the return of indentured servitude. I intend to continue to fight this imbalance between employer and employee rights in Florida in 2016.
Roger Bernstein 
Immigration
Bernstein Osberg-Braun PL
A growing Miami-China business connection is leading to a new wave of immigration in South Florida. Increasingly, Chinese nationals are investing in real estate developments in Miami to secure a path to U.S. citizenship. This trend began to gain steam in mid-2015 and will, most likely, speed ahead in 2016. The Chinese interest in South Florida is largely tied to an explosion in the number of projects being offered under the EB-5 Immigrant Investor Program. Under this federal program, foreigners who invest at least $500,000 in qualifying EB-5 projects become U.S. residents. About 85 percent of those investors come from China. As a result, more savvy Chinese investors are drawn to Miami as it surfaces as a top U.S. city for EB-5 investment. Case in point: CCCC International Capital Management Group Inc., a Chinese-based construction company, is planning a nearly $1 billion mixed-use development in Miami’s Brickell Financial District. CCCC plans to raise up to $350 million in EB-5 capital by promoting the project among Chinese investors. I am fortunate to be involved in the CCCC project, as my regional center, American Life Investments LLC, is sponsoring the development. The regional center will ensure the project meets all the EB-5 requirements and safeguard the investors. This large-scale construction would create nearly 9,000 permanent jobs, inject close to $1 billion into our local economy, attract wealthy Chinese investors to our city and create a substantial stream of commerce between South Florida and China.
Danielle J. Butler Treglia
Admiralty and Maritime
Luxury Law Group
As the managing partner of Luxury Law Group, I believe that technology will continue to have a great impact on our practice. Although feared by many, we have embraced technology that enhances our attorneys’ performance and effectiveness. From our inception, Luxury Law Group has included software technology and search engine optimization (SEO) to assist us with serving our clients. We have also turned our backs on the “ivory tower” office environment and Luxury Law Group’s office locations in Fort Lauderdale, Stuart and The Hamptons are ground-floor storefronts with living room environments to ease the intimidation most people experience when meeting with an attorney. It is all about fostering the lawyer-client relationship.
John Crabtree
Appellate
Crabtree & Auslander 
If we see alimony reform pass the state Legislature this session, we will likely also see an ensuing –temporary–spike in family law appeals regarding the construction of the new law.
 
Rana M. Gorzeck
Real Estate
Ward Damon
Since my real estate practice is focused on large commercial and industrial transactions, an increase in 1031 transactions across the income-producing property spectrum would have the most impact for my practice in 2016. After seeing very few 1031 transactions from 2008 through 2012, I noticed an increase of these transactions in 2013, resulting from the pent-up need of sellers to sell and buyers with cash to purchase properties. Then in 2014, the 1031 industry grew steadily. Today, it is not unusual for a blue-chip real property to attract a long line of suitors, with the winning bidder often paying in excess of the market value. Our law firm looks forward to guiding more sellers and buyers through these exchanges that can yield powerful protection from capital gain tax exposure.
 
Nina Greene
Franchise
Genovese Joblove & Battista, P.A.
This past year, the franchise community was closely monitoring whether the U.S. National Labor Relations Board (NLRB) would create a new “joint employer” standard, disposing of the standard that has been in place for years in favor of a more broad and ambiguous standard. The decades-long requirement for two or more entities to be considered joint employers, such that they would be jointly liable for employee matters, has been that they had to share in matters governing the essential terms and conditions of employment and exercise direct and immediate control over the employees. As of August 27, 2015, the NLRB changed that longstanding requirement–in Browning-Ferris Indus. of California, Inc.–to an economic realities test, which leaves the franchise community guessing as to how the new standard will be applied. With this change, franchisors will be forced to evaluate, on a case by case basis, whether the employees of their franchisees will be deemed their employees, and thus, become responsible for them. Under this new test, there simply is no predictability or certainty regarding who is an employer, and we expect the change to significantly impact our franchise practice in 2016.
 
Thornton M. “Tim” Henry
Trust and Estate Planning 
Jones, Foster, Johnston & Stubbs, P.A.
I am already seeing the impact of the higher estate tax exempt amounts, where clients with less than $10,000,000 per couple (or $5,000,000 individually) and little chance of increases in their estate amounts have no need to (and are not) doing any advanced planning with irrevocable trusts. I also believe that too much reliance is being put on “portability” in keeping plans simple, rather than relying on credit shelter trusts and/or marital (QPITable) trusts. Double-step-up in basis issues abound. Then, there is the potential in larger estates for the decrease in the availability of partial interest discounts announced by the IRS in their future proposed regulations project under Section 2704. And who knows what the fallout will be under various proposals for income tax ‘simplification’ via rate structures being proposed.
 
Patricia Lebow
Commercial Litigation
Broad and Cassel
The trend that will have the most impact on our commercial litigation practice in 2016 will be businesses litigating over non-competes, intellectual property, contractual disputes and the like. I see the appetites increasing for commercial litigation clients to pay warriors to fight for their dollars and their market positions. Overall, I foresee a positive impact in this practice area as the improvement in the economy will enable business people to more aggressively pursue claims that they may have otherwise forgiven based upon their prior cost/benefit analysis. With loosening restrictions on spending, entrepreneurial clients will spend dollars on litigation that they might have been more reluctant to spend in a tighter economy. 
 
Gregory L. Mayback
Intellectual Property
Mayback & Hoffman, P.A. 
The adverse effect that Alice Corporation Pty. LTD. v. CLS Bank International et al., has had on business method, software, and computer patents will continue to plague start-up companies, draining them of scarce capital. When the U.S. Supreme Court issued the Alice decision on June 19, 2014, it affected thousands of patent applications that had been on file since at least 2011. Most applications in those technology fields took two or three years just to get looked at by an examiner at the U.S. Patent Office. At the time those applications were filed, patent attorneys had a good idea of how to draft the description and claims to pass the then-applicable law and procedures at the Patent Office. When the Alice decision was issued, however, the standards for the kind of disclosure required and the wording of the ever-important claims changed in a way to signal the death of most of those applications. Not only did that waste the patentee’s money spent drafting the application, the owners were unable to alter the application without losing the priority of the original filing date. Giving such inventors this bad news has been the worst part of being an intellectual property attorney.
 
Edward Mullins
International Litigation
Astigarraga Davis
One trend is the increasing appreciation of Miami as a center for resolving international disputes, and not just those associated with Latin America. Within the few years, our firm has handled matters emanating from Canada, Japan, Russia, England and other European countries, as well as Vietnam, to name a few examples. This is in addition to the significant matters from Latin American countries like Brazil, Argentina, and Ecuador. So, I see more disputes continuing to be resolved in Miami, as the city is seen as a center of dispute resolution to challenge New York, London and Paris. You can see tangible evidence of the commitment by the local firms to raising the bar: from the formation of the Miami International Society and the creation of the international arbitration court in the Miami circuit system, to the annual ICC and ICDR events held here (well into their second decade), to the hosting of the ICCA conference last year. Indeed, just last year our firm participated in a NAFTA arbitration against Canada that was seated in Miami (the venue ended up being in Toronto but the official seat was in Miami). As these significant matters continue to be filed here — in arbitration and in court — we think our firm and other members of the South Florida international bar will continue to see increased growth in this practice area.
 
Laura Davis Smith
Family and Marital Law
Greene Smith & Associates, P.A.
As we look toward 2016, trends affecting family lawyers will likely include emerging same-sex marriage and divorce issues, running the gamut from prenuptial agreements to divorce settlements, following the U.S. Supreme Court’s 2015 landmark ruling in the Obergefell case. We will all be forging our way through the new landscape together, dealing with nomenclature changes, a new population of clients and family structures, and increasing acceptance of same-sex matters into the fray of family law litigation. We will also see more of the active pro se litigation movement, with more and more parties taking on their own representation, often to their detriment and to the frustration of the court systems. To assist in meeting the great needs of the courts and litigants, a trend of increasing pro bono assistance will hopefully follow, with lawyers giving more of their time and treasure to the cause. The mentoring of young lawyers is also likely to gain increased support, as more seasoned practitioners conclude that it is important to support those “coming up” in the profession and to lead by example.
 
Alan Weinstein
Criminal Defense/Criminal Law
Law Offices of Alan E. Weinstein, LLC
I anticipate that 2016 will see an even greater shift by the U.S. Justice Department away from drug offenses and into computer crimes, especially those linked to identify theft of some sort. While this shift in focus by the government has been ongoing since 2000, I believe that the Justice Department will defer far more drug cases to state prosecution, and focus its resources on the explosion of identity theft crimes. That shift will impact on the types of cases I am asked to defend, the complexity of the preparation of those cases, and the length of time those cases will take to try. Obviously, those factors will all influence fee decisions, as well as the prospective client’s ability to pay the requisite fees those types of cases engender.

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