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Courts issue plaintiff victories on contingent fees, gun cases.

Sometimes the wheels of justice grind slowly, and sometimes courts act with almost blinding speed. In two cases litigated by the Center for Constitutional Litigation (CCL), the courts recently produced rapid--and favorable--developments.

Only two weeks after hearing oral argument, the Florida Supreme Court issued a preliminary directive against a proposed rule that would have prohibited the waiver of contingent-fee limitations--adopting the position advanced by CCL on behalf of the Academy of Florida Trial Lawyers (AFTL).

On November 30, the supreme court heard oral argument over a petition filed by members of the Florida Medical Association (FMA) asking the court to make it unethical for lawyers to seek or agree to a waiver of any contingent-fee limitations in medical malpractice cases. The fee limits had been adopted in a 2004 amendment to the Florida constitution.

Arguing in favor of the petition were former Florida Chief Justice Stephen Grimes, representing the FMA, and Raquel Rodriquez, counsel to Florida Gov. Jeb Bush. In opposition, the justices heard from Barry Richard, representing the Florida Bar; Joel Perwin on behalf of the Florida Consumer Action Network; and CCL President Robert Peck, representing the AFTL.

Two weeks later, the court telegraphed its ultimate ruling rejecting the petition by directing the Florida Bar to draft and submit a rule of professional conduct that provides a process that permits a knowing and voluntary waiver--precisely the opposite of what the FMA sought in the suit.

CCL played a central role in developing the overall legal strategy for the case with the AFTL, including the filing of a separate declaratory judgment action earlier in 2005 that sought judicial approval of such waivers.

"The Florida Supreme Court's apparent rejection of a nonwaiver rule and endorsement of a waiver procedure will help victims of medical malpractice obtain experienced legal representation in these difficult legal actions," Peck said.

The favorable result in Florida came on the heels of another CCL victory. The center represents the City of New York in its challenge to the applicability of the new federal Protection of Legal Commerce in Arms Act (CAA) to its ongoing nuisance case against gun manufacturers and dealers. In November, CCL argued in the U.S. District Court for the Eastern District of New York that the matter fell within one of the CAA's exceptions--or, alternatively, that the act was unconstitutional.

The court ruled in early December that the case did indeed fall within an exception for liability actions based on statutory authorization. Although the court did not need to address the constitutional issue at that point, it nonetheless found the act to be constitutional.

The court certified its order for interlocutory review, and the defendants have filed an appeal to the Second Circuit. The city filed a cross-appeal on the constitutional question and will continue to be represented by CCL.
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Title Annotation:Florida
Publication:Trial
Date:Feb 1, 2006
Words:467
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