The Greatest Generation

Russell Troutman contributed to the Florida Law Journal after reading Tom Brokaw’s The Greatest Generation. His idea is that a sequel should be written “titledĀ An Even Greater Generation in honor of the following generation our generation whose fights for justice and civil rights inspired monumental and lasting social changes that have improved life for all Americans.” Russell Troutman goes on to recount his memories of the struggles before and after the civil rights movement.

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Lawyer: Big Business Targets Wisdom of Simple Justice

Florida law holds that when a person is injured from someone’s negligence, without whose negligence the injury would not have occurred, the negligent party is fully accountable. It matters not whether negligence is small or gross.

Under the doctrine of joint and several liability, the test is whether the individual negligence of two or more persons was the cause of the accident, without either of which the accident would not have occurred. This is simple justice, but the big-business lobby, represented by Associated Industries, is waging a battle to eliminate the doctrine of joint and several liability evolved from the wisdom of ages.

The commercial world rhetorically asks, “Why should a party 10 percent at fault be responsible for 100 percent of the damages? The better question is: Why should a negligent party be relieved from responsibility when his 10 percent negligence caused the accident?

Joint and several liability also applies in criminal law, too. In a bank robbery, the person holding the flashlight for the safe cracker is deemed equally guilty as the more skilled work of the safe cracker. If this example were a civil case, Associated Industries would argue the flashlight man should receive jail time of 10 percent of that received by the safe cracker who actually opened the safe and bagged the money.

More graphically, the felony/ murder rule in criminal law, just as joint and several liability in civil law, places equal blame on two holdup men, one of whom shoots the storekeeper and the other of whom merely cleaned out the cash register. No apportionment of blame is attempted; both men will be charged with murder in the first degree.

Associated Industries of Florida represents commercial vehicles. How successful would an organization called Associated Criminals of Florida be in lobbying a statute compelling the court to apportion fault between criminals and requiring imposition of the sentence pursuant to that apportionment?

Two negligent vehicles coming together and paralyzing our bodies without adequate remedy should concern us most. We should be less concerned about the arbitrary, if not capricious, percentaging of responsibility between two wrongdoers, each of whose negligence caused the accident, or worried about deep-pocket issues or the overly vaunted spin of frivolous suits.

The priority of the greater public interest is to deliver justice both to the victims of crime and negligence. The greater public interest is not served by easing up on criminal or civil violators whose joint or several (individual) violations of the law wreak havoc on life and property.

By Russell Troutman
The Orlando Sentinel
Wednesday March 29, 2006

Preeminent Lawyers

The lawyers of Troutman, Williams, Irvin, Green, & Helms, P.A. have been recognized by Martindale-Hubbell as preeminent lawyers for their high professional legal standards and ethics. This honor was published in Martindale-Hubbell’s 2005 Bar Register of Preeminent Lawyers. Receiving this award acknowledges that our lawyers maintain a high level of legal ability while adhering to the professional standards of conduct, ethics, reliability and diligence.

Troutman Williams is proud to receive this recognition which results from its main focus – commitment to the client. Our high level of legal ability stems not only from the knowledge of our lawyers but also the vast experience of an established firm. Troutman Williams has been an iconic Central Florida law firm, representing the people of Florida for over forty years. The life of our firm has been grounded in the recognition that our lawyers work for the client; not the other way around. With this in mind, our lawyers keep clients informed of their case on a regular basis. Our lawyers fight hard for clients, knowing that the outcome of our representation can have huge impacts on the lives of our clients.

The Power to Declare War

“Congress shall have the power to declare war.” So states Article I, Section 8, Clause 11, of the Constitution. A strict constructionist approach to the constitution grants no concurrent power for the president to declare war.

Since our nation’s origin, presidents asked Congress for and were given declarations of war 11 times. The first was against Britain in 1812, and the last few were against Japan, Germany and their allies in the 1940s.

President Harry Truman circumvented Congress in 1950 by calling the Korean War a police action. In August 1964, in lieu of a declaration of war, Congress passed the Gulf of Tonkin resolution conferring upon President Lyndon B. Johnson and option to use force in Vietnam “as the president determines.” The resolution was slated to expire “when the president shall determine the peace and security of the area is reasonably insured.”

With Iraq, the president pushed through the 107th Congress a resolution authorizing him to use force if diplomatic efforts failed to force Saddam Hussein to relinquish his putative weapons of mass destruction. The president did not consider the resolution a declaration of war. To the contrary, he told Congress, “approving this resolution does not mean that military action is imminent or unavoidable.” It means, “America speaks with one voice.” The president did not ask for a declaration of war, did not intend to receive a declaration of war, nor was the resolution called a declaration of war. Yet, we went to war anyway.

As an example of the kind of stipulations marking Congress’ official declarations of war, consider that of 1941 directed at Japan: “Be it resolved by the Senate and the House of Representatives of the United States of America in Congress assembled that a state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the Untied States is hereby formally declared and the president is hereby authorized and directed (not discretionary) to employ the entire navy and military forces of the United States and the resources of the government to carry on war against the Imperial Government of Japan, and bring the conflict to a successful termination, all resources for the country are hereby pledged by the Congress of the United States.”

Such resolute and stirring phraseology is not characteristic of those declarations with which Congress has abdicated its war-making responsibilities. These resolutions are adroitly phrased, so that if the war is successful, Congress can share credit. But if the war proves a mistake, legislators can tell their constituents all they meant was to give the president a vote of confidence to make the decision.

Recently retired U.S. Sen. Bob Graham of Florida, who served as chairman of the Senate Intelligence Committee, said in a speech on Nov. 30th that six months before the US. Forces invaded Iraq, he asked George Tenet, director of the CIA, to analyze the “readiness and willingness of Iraqis to an invasion” but was ignored. According to Graham, “To the administration, its always going to be Paris in 1944: We would be embraced we would go home, and Iraqi people would be happy…. There was no effort to assess a range of possibilities including an insurgency.”

Graham vote against the resolution, but his was a voice crying in the wilderness.

The issue here is more than semantics. We are better served if Congress, local representatives of all factions, take the grave and sobering step of assessing, as Graham says, the broad range of each proposed war’s possibilities, including estimates of the minimal cost of lives, the minimal time required, and its economic impact. This process inevitably requires each member of Congress to make a personal decision whether the gains of war are worth its heart wrenching sacrifices. Had that been done regarding Iraq, this war of dubious results might have been avoided.

Our constitutional system of governance does not include presidential wars within the wide grasp of the executive branch, and no act of Congress can amend, modify or veto the Constitution, the supreme law of the land.

A robust national debate is long overdue whether the nation should require formal declarations of war. There was wisdom in the Founding Fathers’ stipulation that only Congress should have the power to declare war.

Rather than letting that wisdom slide silently into the grave, shouldn’t we, as a nation, be openly and vigorously debating whether to return to the Constitution?

By Russell Troutman
The Orlando Sentinel
Thursday December 27, 2005

Independent Judiciary Important to Separation of Powers

The recent debacle in the United States Senate over judicial appointments may be a sequel to molding the judiciary to be the mere enforcer of “political decisions.”

The idea the judiciary is restricted merely to that of “an enforcer of political decisions made by elected representatives,” advocated on the Senate floor by U.S. Senator John Cornyn, is so precedentially fallacious it is inconceivable it was sincerely made.

Our greatest chief justice, John Marshall, a contemporary of our founders, served with George Washington in the Revolutionary War, and later as secretary of state, declared in Marbury v. Madison (1803) it is the exclusive function of the court “to say what the law is.”

Marshall’s opinion is unassailable to those embracing original-intent philosophy to confer check-and-balance powers to the three branches of government.

For example, the legislative branch enacts legislation. The executive branch may veto the legislation; the legislature may override the veto; the judicial branch is empowered to review the constitutionality of legislation, but only when a pertinent case is brought to the court; the legislative branch in turn has the check-and-balance power to initiate the amendment process.

It speaks well for Marshall’s interpretation of the Constitution that notwithstanding 27 successful amendments, neither the legislative nor executive branch has proposed an amendment obviating judicial review or any part of separation of powers, nor are they likely to. Likewise, no state has convened a convention to propose an amendment to eliminate that necessity.

House Majority Leader Tom Delay’s quote: “The time will come when judges will answer for their behavior” suggests judges must reflect public opinion or be punished. The contrary is true. To demonstrate the resoluteness of our Founding Fathers to have an independent judiciary, they provided for the election of the executive and legislative branches of government but appointment for life of federal judges. Their purpose was to assure public opinion, when misguided, would not compromise intellectual honesty.

Instead, these dedicated men and women have an unswerving duty, to quote Abraham Lincoln, “To do the right as God gives us to see the right.” They must perform their function with intellectual detachment in the face of impeachment threats, which happened with Chief Justice Earl Warren following the desegregation decision of Brown v. Board of Education (1954) or even threat of life.

Judges are defenseless to answer charges and protests. Even when rulings arouse angry emotions, judges do not deserve threats, especially by august leaders to “answer for their behavior” or intimidated to be “an enforcer of political decisions,” or life threatened as did one malevolent who offered a reward to anyone who kills a St. Petersburg judge ruling in the Schiavo case.

Indeed, the judiciary has and will displease many for whatever reason, but to reduce that equal branch of government to serve as a minion to the executive and legislative branches of government, not only does violence to constitutional sanctity but violence to the founders’ original philosophy that an independent judiciary is indispensable to a democratically free society.

My Word
By Russell Troutman
The Orlando Sentinel
Thursday May 26, 2005

Strictly Speaking, What’s the Essence of Judicial Label?

When President Bush nominated John Roberts to the U.S. Supreme Court, he announced John Roberts to be a strict constructionist. The phrase, “strict constructionist” means implementing the precise words of the Constitution in regard to the original intent of the Founders. Anything other than that is judicial activism and legislating, so court critics say.

The president cited Dred Scott v. Sandford (1857) as the antithesis of strict construction when he said, “The Dred Scott case is where judges, years ago, said that the Constitution allowed slavery because of personal property rights. That’s a personal opinion. That’s not what the Constitution says . . . and so, I would pick people for the United States Supreme Court that would be strict constructionists.”

To the contrary, Dred Scott v. Sandford, rather than an example of judicial activism, is a dead ringer for strict construction. In that case, Chief Justice Roger B. Taney declared no state or territory could constitutionally prohibit slavery without contravening the meaning and original intent of the Constitution.

Justice Taney cited provisions directly dealing with slavery. Article I, Section 9, prohibits Congress from interfering with the importation of slaves before 1808. Article IV, Section 2, requires states to return escaped slaves to their owners. Although not mentioned by Taney, Article I, Section 2, provided a slave should be counted as three-fifths of a person in apportioning state representation in the House of Representatives.

These three provisions sanctioning slavery led Taney to the conclusion slavery was clearly contemplated in the Constitution, and neither Congress, nor states, nor territories could legally prohibit slavery without violating the supreme law of the land.

The Dred Scott decision convulsed our nation to a level only war could resolve. Not only does Taney win the prize when it comes to strict construction, he wins first place when it comes to original intent of the Founders as a measuring rod to interpret the Constitution.

Taney anticipated the inevitable outcry and defended his decision when he wrote, “It is not the providence of the Court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the Court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.”

Taney also reminded his critics that “if any of its provisions (Constitution) are deemed unjust, there is a mode prescribed in the instrument itself to which it may be amended, but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.”

Taney was telling America the Constitution says what it says, and if we don’t like it, amend it. In fact, it was amended after the Civil War with the 13th Amendment, which abolished slavery, and the 14th Amendment, which gave us the “due process of law” and “equal protection of the laws” clauses.

In contrast to the strict construction approach preferred by Bush is the case of Brown v. Board of Education (1954) which declared racially segregated schools a violation of “the equal protection of the laws” clause of the 14th Amendment. Yet, some constitutional theorists attack Brown v. Board of Education as judicial activism, the very thing President Bush rejects.

Indeed, it is accurate to say the court grafted into the 14th Amendment its unanimous opinion that segregated schools were inherently unequal. Chief Justice Earl Warren, who wrote the opinion, admitted it was not possible to decide whether the authors of the 14th Amendment intended to ban segregation.

Similarly to Dred Scott, Brown caused a tumult. “Impeach Chief Justice Earl Warren” signs dotted the highways and landscapes throughout the land, especially in the south. Yet Brown v. Board of Education is so irreversibly entrenched in our ethos, one wonders why it took so long to get there.

Since there are no specific provisions in the Constitution dealing with segregation, Brown v. Board of Education is a prime example of judicial activism at its zenith. Likewise, the right to remain silent when arrested, the right to counsel as prerequisite to a fair trial, as well as racial integration in public places, are all examples of judicial activism grafted into the First, Fifth, and 14th Amendments.

Ironically, the term strict construction is an oxymoron. When the wording in the Constitution is specific, such as Congress has the power to coin money or establish post offices, there is no need for construction. On the other hand, if the phrase being studied is a general platitude like “equal protection of the laws,” then it cannot be strictly construed by the wording itself and must depend upon the court to define the parameters of that phrase.

John Roberts has said everything he can say to assure America that he will be a conscientious justice. He has said his personal ideas will not influence his decision- making. He obviously agrees with John Marshall, who declared in Marbury v. Madison (1803) that it is the exclusive function of the Court, “to say what the law is.” Although John Roberts may use a conservative approach, he can be no more a strict constructionist than any justice mandated to “say what the law is.”

We can ask nothing further of the gentleman, nor expect a better appointment from this conservative president. If I were a member of the Senate, I would unhesitatingly vote to confirm him.

My Word
By Russell Troutman
The Orlando Sentinel
Thursday May 25, 2005

Don’t Slam Gavel on Independence

The judiciary is indispensable to our successful democracy. It is the best antidote to abuse of power even when it is the abuser of power. It is an integral part to separation of powers between the executive, legislative and judicial branches of government.

The validity of this premise depends upon judicial independence from the majority, as well as the fluctuations of the legislative and executive branches. The judiciary’s mission can be narrowly defined as aligning statutes and government practices with the Constitution. This is essentially the broader policy statement of our nation’s governing principles.

A good example among many is Brown v. Board of Education of Topeka, Kan., when beginning in 1954, the Supreme Court decided a series of cases that stopped the practice of neo-slavery in this country. After 100 years of legislative and executive branch inertia, the 14th Amendment’s “Equal Protection of the Laws” finally brought into practice what Thomas Jefferson pontificated in theory in the Declaration of Independence.

There has always been tension within the separation of powers. Our governor pushed through a bill allowing him to overrule the judicial branch in the Terri Schiavo case. Imagine President Dwight D. Eisenhower pushing through Congress a law empowering him to reverse Brown v. Board of Education. The idea that the judiciary should defer to the legislature breaches the doctrine of separation of powers among three co-equal branches of government.

There are current threats to judicial independence on the horizon.

By withholding full funding for the court system, 1 million criminal cases, 1.2 million civil cases, and a half-million cases involving children, family, and elders (a typical annual disposition) will not be completely handled. Currently, 80 state judicial vacancies are the victims of refusal to fund. Inasmuch as courtrooms are open to the media and public with every word reported by court reporters, the idea of state installed cameras beamed on judges to monitor their conduct is unnecessary and also inimical to an independent judiciary. It might be helpful to lawyers to study the idiosyncrasies of the judges, and by so doing be better able to appeal to their natural instincts. This questionable benefit is outweighed by the detriment.

Two pennies of every Florida tax dollar support the judicial branch of government. Indeed, we get our money’s worth. The money is there if our legislative and executive branches perform their duty to fund it. We must not tolerate any system that abridges the Bill of Rights in favor of economy.

Without an impartial forum to seek a remedy, establish a duty, enforce a right, repair a wrong, and punish an evil, the lower side of human nature will govern, and no law the legislative branch can legislate or the executive branch can execute will restore harmony to that inherent judicial system that resides within every human breast.

My Word
By Russell Troutman
The Orlando Sentinel
Friday April 30, 2004

A Malpractice-insurance Crisis

A major point has been overlooked regarding the medical malpractice insurance crisis. Current law gives the medical industry a $250,000 cap on intangible damages (for example, if someone must live the rest of her life paralyzed) when an offer to arbitrate damages is made. If the offer is rejected, the jury’s power to return a verdict is limited to $350,000.

At the time the current cap was enacted, lobbyists argued the cap would stabilize insurance rates. The fact that malpractice insurance crisis is more intense than ever validates the Sentinel’s several editorials that caps are unlikely to reduce rates.

The difference between the existing cap and the proposed legislation is that, under the proposed legislation, the medical industry is not required to offer arbitration to enjoy the cap. Some hospitals have availed themselves of the current cap, but the majority of medical providers prefer to risk even meritorious claims before a jury in hopes of paying nothing rather than offer to arbitrate, which implies payment of some compensation not to exceed $250,000 for pain and suffering.

In theory, the medical industry has the unilateral power to restrict all medical-malpractice claims to a few hundred thousand dollars for pain and suffering and never suffer multimillion dollar verdicts by simply offering to arbitrate. Based on Florida law, the patient is required to present testimony of malpractice from a disinterested medical expert before a claim letter can be written to the negligent provider.

This means that most if not all medical-malpractice claims are at least debatable. Offering to arbitrate is not an admission of liability, and if arbitration is rejected, the medical industry may still fight liability tooth and tong when it goes before the jury.

We are not in a medical-malpractice crisis, but rather we are in a malpractice-insurance crisis. We do not have a judicial system out of control, and claims are not running doctors out of the state. It is insurance rates running doctors out of state.

It is surprising to me that loud rhetoric is not directed towards the fact that state and federal constitutions guarantee jury trial in civil cases. Neither the state nor federal constitution condition the right to jury trial to cases involving less than $250,000.

The apathy of ignoring our constitution to accommodate insurance rates is particularly puzzling when the proposed cap on damages applies to people suing insurance companies, but no caps are suggested when insurance companies sue people or, for that matter, when corporations sue corporations for the last farthing.

Now for the solution. The solution is self-insurance. During my term as an officer of The Florida Bar, when legal malpractice rates escalated, The Florida Bar self-insured. Insurance companies got the message and lawyers no longer have a problem with malpractice-insurance rates.

On the other hand, if the goal of medical industry is simply to avoid accountability notwithstanding the merits, then none of the arguments I present here apply.

My Word
By Russell Troutman
The Orlando Sentinel
Friday February 11, 2003

Jury punishes auto insurer

SANFORD – A Chuluota woman crippled in a 1998 traffic accident has won a $4.3 million judgment against her own automobile insurance company. A six-member Seminole County jury ruled in favor of Pauline Giaccone, 54, of Chuluota. A doctor testified she had lost virtually all use of her left shoulder after a two-car crash in Oviedo. Giaccone had paid for $400,000 worth of uninsured motorist coverage from State Farm Mutual Auto Insurance Co., but the company was willing to pay only a small portion of that, said Russell Troutman, one of her attorneys.

Orlando Sentinel
February 28, 2001

Private interviews by judge? No

The article last Sunday about Circuit Judge Joe Baker interviewing his son-in-law and a computer-consultant friend to help him decide whether to reduce a $2 million jury verdict against Disney Vacation Club Management Corp. to $1,000 misses the point.

The issue is not whether the “judiciary is prohibited from informing itself,” as Judge Baker states.

Nor is the issue whether “judges are supposed to make decisions based solely on the information that lawyers provide during the case,” as the article stated.

Rather, the issue is whether a litigant’s constitutional right to due process of law should be repealed in favor of private interviews by the judge.

When a jury, after hearing all the evidence, returns a verdict in the amount of $2 million and the judge reduces the verdict to $l,000 based on private interviews outside the courtroom, that is denial of the plaintiff’s right to a jury trial, secured by Article 7 of the Bill of Rights.

When a judge leaves the courtroom and takes unsworn testimony from his son-in-law and computer-consultant friend and uses that out-of-court evidence as a basis for his decision, the litigants are denied a public trial, and the right to confront and cross-examine witnesses.

The jury system contemplates parties for both sides of a dispute presenting evidence in a public forum where the parties can see, hear and test it. The jurors are instructed to base a verdict on the evidence and not discuss the case with anyone – including his or her spouse – or read or listen to news reports. When a judge goes behind the scene in private and gathers evidence, he is violating the very instruction he gives to the jury.

Imagine a jury verdict in a criminal case being set aside by the judge on the basis of his private investigation that the live witnesses who testified at trial were all wrong. If Judge Baker is convicted of violating judicial ethics in his upcoming public trial, it would be an irony indeed if, after Baker has hired a lawyer to confront and cross-examine witnesses, the decision was based on private interviews outside the courtroom. I have a feeling that his lawyer would appeal and win a reversal as Judge Baker was reversed when he did private interviews.

There is no need for a jurist to conduct a private investigation to supplement “information that lawyers provide during the case.”

Under both the civil and criminal rules of procedure, the judge has the power to summon experts as court witnesses to educate the court. In addition, the judge may participate in the questioning of the witnesses actually called by the lawyers for further elaboration.

Conducting private discussions with people outside the trial setting and using that as a basis for the ultimate outcome is an abnegation of the major tenets of constitutional due process of law.

My Word
By Russell Troutman
The Orlando Sentinel
Sun. February 11, 2001

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