Thursday, April 24, 2014

"We're Sitting Here Talking About Eight Pages."

I'd love Magistrate Judge Goodman to guest write for our blog -- he's got that ability to connect a mundane legal issue to just about any random pop culture reference -- something critically necessary for the successful practice of law writing a dumb legal blog that generates no income of any kind.

Here he is connecting a dry discovery dispute to Allen Iverson:
First, the Court does not find that Patheon is relying on these documents as a defense to Procaps’ claims. To paraphrase former NBA star Allen Iverson, “we’re sitting here talking about” 8 pages, “not a” mountain of documents.3
And here's footnote 3:
Mr. Iverson’s often‐quoted remark was: “I mean listen, we’re sitting here talking about practice, not a game, not a game, not a game, but we’re talking about practice.” (last visited April 22, 2014). Mr. Iverson would go onto say “practice” more than 20 times in a two‐minute period.
(I would have embedded the clip in the Order as further support for the reference but otherwise kudos, Judge, kudos.)

Wednesday, April 23, 2014

3d DCA Watch -- Frye vs. Daubert Day!

Do you spend hours debating the relative merits of Frye vs. Daubert?

Or are you just interested in a big fat Venetian Salami?

 Either way you are a policy wonk and will therefore love Judge Shepherd's analysis of the differences in today's 3d DCA Watch:

Perez v. BellSouth:

Opinion in a nutshell -- using either test the plaintiff's expert was excludable:
Osmany Anthony Perez, a minor, by and through his mother and next friend, Maria Franco Perez, appeals an adverse summary judgment in a negligence case rendered after the trial court struck the only medical expert testimony linking his premature birth, resulting surgeries, and developmental deficits to workplace stress. The workplace stress arose from the alleged failure of Maria’s employer, Bell South Telecommunications, Inc., to limit her work hours to forty hours a week and allow frequent bathroom breaks. The trial court found the testimony to be inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Since then, the Florida Legislature has amended the Florida Evidence Code to employ the United States Supreme Court’s more recently promulgated “Daubert test,” to gauge the admissibility of expert testimony in the stead of the older “Frye test.” After obtaining supplemental briefing from the parties on the applicability of the Daubert test to the facts of this case, we find affirmance would be in order under either the former or more recently adopted statutory test.
Plus a little philosophy lesson:
Dr. Cardella’s proposed testimony is inadmissible under Daubert. Dr. Cardella had never before related a placental abruption to workplace stress and knew of no one who had. There is no scientific support for his opinion. The opinion he proffers is a classic example of the common fallacy of assuming causality from temporal sequence.
Question -- can pundits and politicians be excluded from my TV on the same grounds?

Du Pont v. Sidran:

They say justice should be swift and sure, but this case has been pending since 1992!

So twenty-two years later, there has been a development:
The order on appeal is therefore reversed and the cause remanded for an expedited trial on the merits of the plaintiffs’ claims with no further amendments and no additional discovery to be permitted.

I'm waiting for the 25th anniversary!

Tuesday, April 22, 2014

It's About Time for a Good 11th Circuit Forum Non Opinion!

This one involves Judge Zloch, the beautiful country of Belize, the newly important significance of a forum-selection clause in conducting a forum non analysis, and sadly -- so sadly -- does not in any way involve Venetian Salami even tangentially:
Thus, a district court now must consider an enforceable forum-selection clause in the forum non conveniens analysis. A binding forum-selection clause requires the court to find that the forum non conveniens private factors entirely favor the selected forum. . . .

In this case, the district court dismissed for forum non conveniens without addressing the significance of the forum-selection clause. In the face of this recent high court ruling, we are obliged to vacate the forum non conveniens dismissal. See Atl. Marine, 134 S. Ct. at 581 (“The calculus changes . . . when the parties’ contract contains a valid forum-selection clause . . . .”); La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir. 1983) (“[T]he court abuses its discretion when it fails to balance the relevant factors.”). We remand to allow the district court to determine in the first instance whether the forum-selection clause in the Master Lease Agreement is enforceable. If the forum-selection clause binds the Government, the district court must find that the forum non conveniens private factors unequivocally support the selected forum. See Atl. Marine, 134 S. Ct. at 582. The forum non conveniens analysis should then proceed, with the understanding that “[i]n all but the most unusual cases . . . ‘the interest of justice’ is served by holding parties to their bargain.” Id. at 583.
I like the bright-line nature of this ruling; now the parties can draft agreements reflecting the state of the law and include or not include such language accordingly.

Gay Marriage Paradise

I haven't written on the subject lately and that isn't because there is nothing going on, rather just the opposite. When the walls fall down it seems they come crashing all at once. 

For example:

The lawyer who defended California’s ban on gay marriage in front of theSupreme Court is now helping his daughter plan her wedding to another woman. 
Attorney Charles Cooper said that he found out that his stepdaughter is gay while handling the case for Last year, he argued before the Supreme Court to that gay unions could undermine the marriage between a man and woman. The court ruled to strike down Proposition 8, which, backed by California voters, had banned marriage in the state in 2008.
Supposedly he's 'evolving' and that's great. I highly recommend evolution. It's wonderful that you realize that you were wrong when it affects your own family. But we human beings come equipped with this ability to put ourselves in someone else's position without actually being in it. I don't need to be a black person to know that racism is wrong. I can close my eyes, relax, put myself in that position and feel what it is like. It's called empathy and it results in compassion. It is an underused skill and an underrated talent. It should be taught along with reading, writing, and critical thinking.

We should all use empathy more often. It's so much easier to do things right the first time then to have to go back and correct.

So yes, it's paradise. We (the husband and I) recently received a refund from our first joint tax returns and we've been pumping that money back into the economy. Funny thing, not one store we shopped at asked if it was a windfall from bringing about the downfall of western civilization. I think they were just glad for the business.

Monday, April 21, 2014

Should Bar Focus on Black/Hispanic Judicial Disparity?

Kudos to our new Florida Bar President Eugene Pettis, who has decided to make this a focus of his Presidency:
The Florida Bar Association says there are only 26 blacks and 58 Hispanics among the state’s 594 circuit court judges. Of the 319 county court judges, only 32 are blacks and 26 are Hispanics. Also, only six blacks are currently among the 61 judges on the five district courts of appeal, along with only two Hispanics.
Such statistics have led Eugene Pettis, the Florida Bar’s first black leader, to establish the President’s Task Force to Study the Enhancement of Diversity on the Bench and Judicial Nominating Commissions.
The task force has met a few times and will hold another session at month-end, aiming to hand in its report in late May, the panel’s chairman, Frank P. Scruggs II, said.
Scruggs, a Fort Lauderdale resident and partner in the law firm Berger Singerman, is a widely respected attorney who headed a landmark study in 1990-92 for the State Supreme Court on racial and ethnic bias in the judicial system. The commission’s work produced  legislation dealing with matters such as the judicial code of conduct, as well as juvenile justice.
Some critics have linked the lack of racial diversity among judges in part to the very small number of minorities on the Judicial Nominating Commissions (JNC) which recommends candidates for judgeships to the governor when new seats are created or there is a vacancy.
The governor appoints five members of each JNC and picks four members from nominees submitted by the Bar; the appointments are for four years.
The Florida Bar News, which reported the statistics, said the number of blacks on those commissions has dropped from nearly 25 percent to four percent and to less than 10 percent for Hispanics.
 “I am hopeful that this group will additionally focus on some solutions to these concerning trends so that the Bar and the Governor’s Office may use them to facilitate and accomplish our common goal of making sure our judiciary is reflective of our community,” Pettis said in making the announcement.
I'm genuinely surprised by these numbers.

What do you all think of this?

Seems to me if you take out Miami-Dade, Broward and Palm Beach County the disparities would be even more acute.

Saturday, April 19, 2014


What is going on with Bryan Singer?
As X-Men director Bryan Singer is gearing up for his defense case, which he will have to make in court and in the media, the sexual abuse allegations against him have sent the Days of Future Past marketing campaign into a tailspin. 20th Century Fox and ABC are scrambling to save the promotional campaigns for several of the director/producer’s projects. According to The Hollywood Reporter, Singer has already cancelled an appearance at a comic book convention this weekend, where he was supposed to promote Days of Future Past and an MPAA-sponsored conference in Washington, D.C., on May 2 at which Vice President Joe Biden will be the featured speaker. 
Who wants to bet that Joe reschedules? The allegations against Bryan Singer are shocking and if true he should suffer the consequences. But as yet they are just allegations. 

I don’t have any facts to offer but I do have a bit of perspective. I too was involved in any number of gay, drug-fueled sex parties in the 90s. Yes, they were fun. Yes, they were just as debaucherous as they sound. They also came in different flavors. The ones I went to were very selective. You had to produce ID to confirm that you were neither too old nor too young. You were also subjected to a full nude body evaluation, as well as other intimate measurements. Then came hours, sometimes days of naked romping with my fellow gay √úbermensch and a good time was had by all. 

Was that seedy by Puritan standards? Damn right it was, but it was also a group of consenting adults participating in private sexual behavior, harming no one. It is very easy for me to believe that there are those who take the abandonment of social norms to more troubling levels. It is certainly salacious to believe that Hollywood is a cesspool where money, power, sex, and drugs intertwine with reckless abandon. Who hasn’t witnessed the Cremation of Care at the foot of Moloch?

But there is another seedy underground world and that is the world of the hustler. Hustlers too come in a variety of flavors. Some are young. Some are too young. Some are victims, but some know exactly what they are doing and are really good at it. Some even come equipped with flawless fake IDs. 

I can conceive of a cohesive reality wherein Bryan Singer knowingly engaged in sex acts with a minor. I can also conceive of a cohesive reality wherein an underage person got into a party where a lot of people were really high, engaged in consensual acts, and now seeks to cash in on the celebrity of his former tryst.

Which is the truth? I truly do not know. 

Thursday, April 17, 2014

What Is a Shotgun Pleading, Truly?

Longtimers know our affinity for shotgun pleadings, but let's get metaphysical for a moment -- what are they, really?

Is it just when you incorporate all prior allegations into each count, or is there something "more" to a shotgun pleading?

Perhaps something essential to its shotgun nature, something at its core that screams: this complaint is a mess.

Judge Marra weighs in on this interesting philosophical debate:
The Court begins by noting that the Amended Complaint does not constitute a shotgun pleading. Indeed, in those cases, it is “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364,366 (11th 1996). Although several counts of the Amended Complaint do incorporate by reference all of the preceding allegations, the Court finds the claims are sufficiently definite to enable Defendant to know with what it is charged and to enable Defendant to respond to the allegations.
For goodness sakes nobody tell Judge Tjoflat!

(BTW here is the back story on that amazing photo.)

Wednesday, April 16, 2014

Go West, Young Man!

And we're not talking Naples/Ft. Myers.

From the Intrepid One ©
Carlton Fields Jorden Burt has opened an office in Los Angeles—its 11th nationally—with two shareholders from Steptoe and Johnson.

In a statement, firm president and CEO Gary Sasso said the firm's class action defense practice drove it to open an office in Los Angeles, noting many of those cases are filed there.

"We have substantial clients, cases and transactions in California, so opening an office in Los Angeles is a natural progression of our growth," he stated.
Good luck with that!

N.B.: In 1865, American author Horace Greeley wrote in an editorial "Washington is not a place to live in. The rents are high, the food is bad, the dust is disgusting and the morals are deplorable. Go West, young man, go West and grow up with the country."

I don't want to speak badly about our Nation's Capital, but that Horace was on to something...

3d DCA Watch -- Somebody Got the Kozel Factors Right!

Could this be a first in our multi-year coverage of the bunker?

A trial court getting the Kozel factors right, and properly applying them?
Following the hearing on the motion, the court announced its findings on the record and rendered an order which thoughtfully analyzed and applied the requisite factors under Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993). The record contains competent substantial evidence to support the trial court’s order of dismissal, and we find no abuse of discretion.
Yes, Virginia, there is a Judge Abby Cynamon!

(She's running for reelection btw -- help her out.)

Five things I overheard at Friday's excellent Appellate Jurisdiction Seminar:

(1)  "Good afternoon Chief Judge Shepherd, you look very apodictic today!"
(2)  "Can someone show me the mechanical room -- I need me some thighmaster."
(3)  "Do you guys ever issue any PCAs"?
(4)  "Excuse me, but my toilet just came unbolted."
(5)  "Where exactly is the highway from here"?