Wednesday, September 17, 2014

3d DCA Watch - A Record PCA Day!

Forty-nine (49!) PCAs today! Talk about busy! Today's four (4!) pearls of wisdom from the bunker:

You must proffer evidence that meets the statutory requirements to assert a viable punitive damage claim! Writ of Certiorari granted.

Onto the next one.

You must participate in the proceeding to avoid the court striking your pleadings! Judge Gayles goes out with an affirmance.

You must read your email (and attachments!) before you agree with opposing counsel, or your client is stuck.

Finally, listen to your Bubbe (or if she has passed, Elliot Gould): persons cannot do indirectly what they are not permitted to do directly (reversing summary judgment.)

Brian Tannebaum Is Angry Wrote A Book

This promises to be an interesting read. And I will definitely attend the book release party, as the kid never pours bad wine.

Well done, Brian!

Tuesday, September 16, 2014

Since The Day Has Already Gone To Pot...

This excellent editorial addresses one of the issues brought up in the previous thread.
In a column printed Wednesday in the Tampa Bay Times, seven former justices rehashed arguments that opponents previously lost in court: "Voters are led to believe that medical marijuana could only be used for 'debilitating diseases.' But the full text of the amendment allows the use of marijuana for virtually any medical condition at the discretion of any recommending physician, and no actual prescription is required." 
That argument failed and the court decided to "reject the opponents' construction of the proposed amendment" and said: "Rather than allow the open-ended, broad use of marijuana, these multiple restrictions in the text of the amendment itself reflect a constitutional scheme that is meant to be limited in scope regarding the medical use of marijuana to treat 'debilitating medical conditions.' " 
The court could not be clearer and they were right. If the Supreme Court had believed opponent's argument, the amendment would not be on the ballot. 
The former justices' column goes on to say: "Today the criminal and civil justice systems protect citizens from harmful acts and compensate victims and families in cases of medical malpractice and negligence. But under Amendment 2, those providing medical marijuana, including every 'certifying physician,' would be immune from basic enforcement and accountability that protect our safety." 
That statement again represents the opinion of the opponents that was rejected by the Florida Supreme Court: "As the proponent states, in order to enable physicians to consider medical marijuana and certify its use, it is necessary to prevent them from being punished for the limited act of recommending marijuana under the terms of the amendment. That is all the amendment does. … The amendment does not change liability for negligence, fraud or misconduct." 
Again, the court could not be clearer that the amendment does not change liability for wrongful actions. To say otherwise is misleading.
Read it all here.  

L-L-Lies: Debunking The No On 2 Campaign

I like democracy. With good information voters can make good decisions. Conversely, with bad information voters cannot make good decisions.

I just spent an afternoon listening to a powerpoint presentation put together by the Florida Sheriffs Association, and its main thesis – that Amendment 2 is riddled with loopholes – is not just bad information, it's pure bullshit.

The attack on Amendment 2 by the NO crowd relies on an intentional misrepresentation of Florida's constitutional amendment and legislative process. 

The constitutional amendment is just that, an amendment. It is not nor does it purport to be the final body of laws and regulations that will ultimately govern Florida's medical marijuana program, should Amendment 2 pass. It leaves a great deal up to the Florida Legislature and the Florida Department of Health, giving them a wide breadth to craft medical marijuana policies that work for Florida.

These are just a few of the outrageous assertions put forward by the opponents of medical marijuana in their desperate attempt to maintain the status quo.

The Teenager Loophole

To their credit PolitiFact took this one on and to their discredit they gave it a half true, because 18 and 19 year olds are technically teenagers but also adults and thus would not need their parent's consent. But what the NOs are trying to imply is that younger teens (does the girl in this picture look 18?) will be able to get marijuana without their parents consent via the medical marijuana process and that is just a pile of horse manure. Younger teens cannot get medical marijuana without their parent's consent in any of the 2 dozen other medical marijuana states and by the time the completed regulations roll out they will not be able to get it here.

The Charlotte's Web medical marijuana law that is currently on the books was designed to help children suffering from extreme seizure disorders. What sense would it make to craft a medical marijuana law and then exclude children like these who could potentially be helped by other strains? That is why there is no age limit.

Pot Will Make You Gay

This would have been nice for me. I would have had a lot more fun as a teen. But no, it does not work that way.  
"The newly formed Drug Free Florida committee has somehow managed to choose as its chairman a messenger with even less credibility than its message," read a press release put out by pro-pot group United for Care Organization. It continued, "There is no place for bigotry and ignorance in the debate over compassionate medical marijuana policy in Florida." 
Summarizing their take on the 1986 Newsweek article, the group says that Turner "once stated that marijuana 'leads to homosexuality...and therefore to AIDS.' This statement is as offensive as it is inaccurate and should call into question any claim made by Mr. Turner in the course of this campaign."
Doctors Will Write Marijuana Prescriptions For Itchy Backs

PolitiFact did this one too but I'm not even going to link to it because they want to stipulate over the difference between a recommendation and a prescription rather than the core question – will doctors hand out marijuana recommendations willy-nilly or will there be some type of tighter controls? Given what we've seen in this state and elsewhere it is highly likely that some people who don't need marijuana for valid medical reasons might get some. There are bad doctors. There are bad lawyers. There is good and bad in everyone.

But even if a few bad apples hand out some really good bud, so what? Studies have shown that it's less addictive than alcohol or tobacco. We have far more dangerous drugs than marijuana in our pharmacies and on our streets right now. 22,000 people died last year from legal prescription drugs. Not in 5,000 years of medical history has anyone ever died of a marijuana overdose.

There Is No FDA Approved Use For Medical Marijuana 
“The U.S. holds a patent [on marijuana] on one hand, and on the other hand, the same government says it has no medical applications. Journalists are trained to hate hypocrisy. This is hypocrisy. I’ve never seen it quite like this.” ~  Dr. Sanjay Gupta
When I decided to advocate for this issue I educated myself. I have known for years, mostly from hangover recovery, that marijuana is a wonderful remedy for nausea. Good when you've drunk too much the night before, even better when you're on your 5th dose of chemo this week and you can't keep your food down. But there is much more to it than that.

There is no FDA approved use for medical marijuana but ironically, as Dr. Sanjay Gupta says, there is a medical patent for it. The patent (US6630507) is titled “Cannabinoids as antioxidants and neuroprotectants” and was awarded to the Department of Health and Human Services (HHS) in October 2003.

The text of the patent reads
“This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease and HIV dementia.”
What's the thing about a prophylaxis? That's something you take in advance so you don't get sick or something that limits damage from an injury.

That's something the NFL might want to think about.
A well regarded Harvard professor emeritus has a modest suggestion for the NFL: start funding marijuana research as a way to treat concussions. 
Lester Grinspoon has long been an advocate of marijuana. He shared with Vice’s online magazine Motherboard an open letter he’s written to NFL commissioner Roger Godell urging him to listen to evidence of cannabis as a successful treatment for long term head trauma. 
Grinspoon says he is a long-time fan of the NFL and does not want to see players suffer brain traumas in the future. 
He says while helmets can protect the skull, nothing can protect the brain inside…except maybe cannabis. 
“Already, many doctors and researchers believe that marijuana has incredibly powerful neuroprotective properties, an understanding based on both laboratory and clinical data,” he writes. 
Grinspoon says the NFL is one of the few organizations with the deep pockets to fund the extensive research needed. 
He says the money will be worth it to prevent a lifetime of brain disease for future players. 
If medical marijuana is indeed something that can actually prevent damage from concussions and diseases like Alzheimer's, the problem with Amendment 2 isn't that it's too lenient. The problem is that it's too restrictive. Under Amendment 2, you will have to be debilitated before you can get the treatment that would have been preventative.

If you take anything from this it should be that medical marijuana has real science behind it, and all the NOs have is "pot will give you kooties and they'll sell it off ice cream trucks like in that Cheech & Chong movie."

Rocky Road, please and Yes On 2.

Monday, September 15, 2014

SFL Monday -- Happy Happy Joy Joy!

Hi there, did you enjoy your abuse-filled, concussively violent sports weekend (except for the Fins,who played like wusses)?

1.  Steve Siff going to jail for 13 months(!).

2.  Judge Silverman robbed at gunpoint.

3.  Constitution Day is almost here!

4.  Subtle Dildo -- what an awesome name for a rock band!

5.  "Judges smoke it.  Even the lawyers do."

Friday, September 12, 2014

SFL Civil Ethics Friday, Continued: Inadvertent Disclosure of Privileged Material!

SFL sets the tone with his Ethics Seminar plug. (Anytime I see Tannebaum I review my malpractice policy limits.)

If, like me, you "delegate" document production to your associates and "carefully" review the production before made, you've encountered the dreaded inadvertent disclosure of privileged material.

We all know what to do: read FRCP 1.285. Or, to simplify, give it back.

To simplify further, below is a visual demonstration of how to best handle this ethical conundrum.

Have a great weekend.

DCDBA NTSF:SD:SUV Civil Ethics Seminar!

That group with a lot of initials (actually, it's here) is having a seminar about a few important topics:

1. Gun rights;
2. Government overreach;
3. Constitutional violations;
4. Illegal drone wars;
5. How to rock a hat in South Florida; and
6. Football.

Ok, that's just how I imagine an ideal seminar unfolding for the afternoon moderator.

(What did I miss, Robert?)

It's really a terrific panel filled with notables, including distinguished practitioners and judges plus this guy captured mid-tweet:

Mark your calendars for October 8th -- see you there!

Thursday, September 11, 2014

I Don't Think Judge Tjoflat Likes These Tobacco Cases That Much.

He seems to think they don't belong in federal court any court:
These consolidated appeals are yet another chapter in the ongoing tobacco litigation that began as a class action in Florida courts more than two decades ago and has since swollen the federal docket with thousands of individual cases. Today we are asked to decide the fate of 588 personal injury cases filed on behalf of purportedly living cigarette smokers who, as it turns out, were dead at the time of filing (a group we shall call the “predeceased plaintiffs”), 160 loss of consortium cases filed on behalf of spouses and children1 of these predeceased plaintiffs, and two wrongful death cases filed more than two years after the decedent-smoker’s death. These cases all suffered from various patent defects. As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim; under Florida law, a loss of consortium claim is “derivative in nature and wholly dependent on [the injured party’s] ability to recover,” Faulkner v. Allstate Ins. Co., 367 So. 2d 214, 217 (Fla. 1979);2 and claims brought pursuant to the Florida Wrongful Death Act are subject to a two-year limitations period, Fla. Stat. § 95.11(4)(d)....

Despite the thousands of pages of briefing to the District Court and to this court, the root of the problem in all these cases is simple. Back in 2008, when these cases were originally filed, the law firm that brought them didn’t have the time or resources required to fully investigate all the complaints (the firm in question filed claims on behalf of over 4,000 individuals). As a result, problem after problem cropped up once the District Court started going through the inventory of cases: there were personal injury claims filed on behalf of deceased smokers, wrongful death claims filed by “survivors” of smokers who were still living, cases filed as a result of “clerical errors,” multiple cases filed for the same person, cases filed for people the law firm had no contact with, claims that had already been adjudicated by another court, cases filed for people who didn’t want to pursue a lawsuit, and claims filed long after the relevant limitations period had run. Over and over, plaintiffs’ counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits. And over and over the District Court reminded counsel that a lawyer’s responsibilities to the court are not diluted even by an ocean of claims.
Quite a read -- it goes (way) downhill from there.

Wednesday, September 10, 2014

3d DCA Watch -- Oh Baby You Just Shut Your Mouth Edition.

"Visions of swastikas in my head, plans for everyone...."

I guess because I've been reading the excellent new book about Adolf Eichmann after the war but before he wound up being tried in Jerusalem, like David Bowie I've got visions of those peculiar Germans stuck in my head again this morning.

Oh well, let's see what our friends in a very different sort of bunker have been up to today:

This guy sued Wackenhut and got hammered, notwithstanding Judge Langer trying to help him out.

Also -- it involves an offer of judgment!

Personally I think if you live in a house that is worth $4 million you are setting yourself up for some bad karma.  How big do your his and her bathrooms need to be?

(Ok, let me amend that -- $8 million?).

And now this:

Tuesday, September 9, 2014

Bob the Jury Instruction Builder!

At first I thought this was some type of sophisticated Nigerian lawyer spam, but apparently this email is genuine:
The Southern District of Florida has developed a new Jury Instruction Builder tool (JIB) that makes compiling jury instructions quicker and easier than ever before.  Accessible from the Southern District's website (, the JIB tool allows attorneys to prepare a specialized set of instructions from the Eleventh Circuit Court of Appeal's Pattern Jury Instructions.  After selecting from a menu of available criminal or civil pattern instructions, the user immediately receives via email a set of personalized instructions in Word format that is fully customizable.    The JIB tool is available free of charge, and utilizes the latest set of approved Eleventh Circuit Pattern Instructions.  It is also accessible through the Eleventh Circuit's website ( ).
Has anyone tried this out yet?

Let's be honest -- although all good civil litigators like to pretend they are "trial lawyers," very few cases of significance actually go to trial.  What they mean mostly are evidentiary hearings, sj motions, fee hearings etc.

So, all you high-powered lawyers working on RICO case statements and complex fraud cases etc. -- is this thing of any use?