Broad and Cassel's Effort to Disqualify Feldman Gale Denied.

In a messy legal malpractice case against Broad and Cassel and some of its attorneys, Judge Altonaga has denied a motion to disqualify Feldman Gale, largely relying on client consents obtained after the motion was filed:

And in this case, after the present Motion was filed, both Delaware Valley and Esprit executed written waivers of conflict. (See Notice Waivers ¶ 4; Waivers 4–8). Now, Broad speculates that Delaware Valley and Esprit’s consent is not “informed” because “the very fact that Feldman Gale argues that . . . there is no such conflict makes it questionable that Feldman Gale provided the [information] necessary for a conflict waiver to be valid and effective.” (Reply 8). Admittedly, Broad lodged its objections to the waivers prior to their filing, not knowing the waivers’ contents. But subsequent to Shaw’s filing of the waivers, Broad has not requested the opportunity to submit any further argument addressing why the waivers are insufficient.

But the Judge gives a big hint:

Moreover, Broad has not requested an evidentiary hearing or the opportunity to engage in discovery concerning the former clients’ understanding of the nature of the conflict and how it may present itself during the course of this litigation. Appropriately viewing Broad’s Motion with “skepticism,” and without more explanation from Broad beyond the conjecture presented prior to the waivers being revealed, there is no reason to discount the effectiveness of the waivers. Accordingly, the waivers are preliminarily found to be sufficient under Rule 4-1.9(a) to permit Feldman Gale’s representation of Shaw.

Hey, anybody want to schedule some depositions?

"Mr. Nurik Will Now Speak About Himself in the Third Person"!

There are plenty of juicy tidbits in this Very Intrepid piece on Marc Nurik, but this part caught my eye:

The judge also wondered whether Nurik would submit a bill for a second deposition of Rothstein planned for this summer. Nurik loudly interjected that he would attend the deposition whether he gets paid or not.

"Mr. Nurik will be there regardless," he said. "Mr. Nurik doesn't abandon his clients."

Admirable (seriously), but I wish Marc had kept going:

"Mr. Nurik plans on not speaking soon.  Mr. Nurik will stop speaking as soon as Mr. Nurik's counsel is done speaking.  Mr. Nurik's counsel advises that Mr. Nurik will now return to eating his Fig Newton."

Florida Supreme Court "Clarifies" Offer of Judgment Statute!

Here's the understatement of the year:

The threat of a potentially unfavorable award of costs and fees, in theory, would promote settlement, reduce litigation costs, and conserve judicial resources.  This statute, however, has not produced the desired outcome as the validity and applicability of section 768.79 and Florida Rule of Civil Procedure 1.442 have produced a significant amount of independent litigation.

Hmm, you think?

And the money quote:

Now properly before the Court, we hold that section 768.79 is substantive for both constitutional and conflict of law purposes.

Stick that in your choice of law provision and smoke it!

Spencer Aronfeld Speaks At #LTNY!

Ok, I admit to being blissfully ignorant of #LTNY 2012.

Best I can tell, it's the type of convention you can get your law firm to send you to after they reject your request to go to the Consumer Electronics Show in Vegas.

And maybe it's just me, but if I'm in New York I can think of literally ten thousand things I would rather be doing than listening to vendors pitch high-tech doohickeys intended to "optimize" my practice.

(I better stop before this turns into a Tannebaum-esqe rant).

But hey, I don't "get" food trucks or sliders or sliders from food trucks either.

Different strokes etc.

So let's just roll tape:

I actually watched this with the sound off, so I have no idea what's being said -- but I love the pinstripes, like the strategic use of the smart phone, the product placement of the two books is unobtrusive and organic -- I'm giving it an A-.

3d DCA Watch -- School Daze Edition!

What a treat -- the bunker denizens will be heading to UM to play Ultimate on the lawn, get soused at the Rat, and TP a few sorority houses....

What?

Actually, I'm advised that this is the Court's official position on the visit:

On February 10, 2012, the Court will hear Oral Argument at the University of Miami Law School, Newman Alumni Center, 6200 San Amaro Drive, Coral Gables, 33146.

Wink wink, nudge nudge, say no more.

Onward:

Aronson v. Aronson:

In this opinion Judge Shepherd "reasons inductively."

Demchak v. Davia:

In a fraudulent inducement suit over the value of a house, do you need to sell the house to establish your damages?

Judge Ramirez says no; Judge Shepherd says yes.

(Question -- can't expert testimony serve as a basis?)

See you crazy kids on campus!

Maybe You Should Prepare Your 30(b)(6) Witness?

 Always a vexing issue, Magistrate Judge Goodman directly confronts a corporate witness who was unprepared and had no knowledge of many of the items identified on a Rule 30(b)(6) depo notice:

First, in response to a 30(b)(6) corporate deposition notice listing 47 topics, QBE produced one witness, a claims examiner, and announced for the first time at the deposition that its designee did not have knowledge on many issues but agreed to produce another corporate representative who would have the requisite knowledge. QBE intended to secure one or more representatives from the insured condominium association, but that plan was thwarted. Nevertheless, the one representative it did produce was unable to adequately answer questions on many topics and he reviewed only a small portion of the documents which QBE had or had access to before the deposition.

For this first scenario, sanctions are appropriate. Because the discovery deadline has expired, because QBE did not fulfill its obligation to properly prepare its own designee, because QBE waited until the corporate representative deposition began to give notice of its designee’s partial inadequacy and because its designee could have (but did not) review substantially more material in order to be a more-responsive witness, Defendant’s requested sanction will be imposed. Specifically, QBE will be precluded from offering any testimony at trial on the subjects which its designee was unable or unwilling to testify about at the 30(b)(6) deposition.

He also gives a fantastic 39-point(!) primer on the law regarding 30(b)(6) depositions and the obligations on the corporation and counsel to adequately prepare a witness for deposition.

And he awards attorneys fees!

Shadows and Light.

Sheesh, what to talk about this morning?

I'm reminded of Joni's Shadows and Light:

Every picture has its shadows
And it has some source of light
Blindness, blindness and sight
The perils of benefactors
The blessings of parasites
Blindness, blindness and sight
Threatened by all things
Devil of cruelty
Drawn to all things
Devil of delight
Mythical devil of the ever-present laws
Governing blindness, blindness and sight

Pacenti writes up an ugly lawyer divorce drama that has been percolating for years but which now sweeps up our endless judicial fundraiser system and potential conflicts of interest :

 A Miami-Dade circuit judge won’t step out of a custody battle between two well-known South Florida lawyers even though the ex-wife’s attorney’s firm co-sponsored a political fundraiser for the judge’s re-election.

Carlton Fields partner Paul Calli is appealing Miami-Dade Judge Maria Espinosa Dennis’ decision to stay in the case. She is up for re-election this year.

Calli claims the fundraiser was within 48 hours of a scheduled hearing in the dispute with his ex-wife, Sarah Mourer, a University of Miami professor of clinical legal education and director of UM’s Death Penalty Clinic and co-director of the Innocence Clinic.

This will be very interesting when the 3d DCA rules.

Personally, I'd rather focus on this nice story about Richard Milstein and the issues LGBT couples face as they near retirement:

This is certainly a concern for Richard Milstein, a Miami attorney. He and his partner of 10 years, Eric Hankin, a public school teacher, have made sure their estate planning is in order. But if Milstein, who has two adult children with his ex-wife, were to die first, Hankin won’t be eligible for Social Security spousal benefits — though the couple married in Iowa two years ago.

“My siblings have children and there’s a certain expectation that these children will take care of them,” Hankin says. “I don’t have any children, but I’m fortunate to have stepchildren and we have a good relationship.”

But even that kind of relationship can be tenuous, whether or not the survivor is gay or straight.

Milstein says that’s one of his concerns if he outlives Hankin.

“I’m older so my thought is I will go first,” he says. “In that case, I worry if he will be able to continue that relationship” with Milstein’s children and a new grandchild.

 Here's another real-life consequence of our antiquated prohibition on same-sex marriages -- let's treat them like every other married couple.

Time to cue Joni:

Critics of all expression
Judges in black and white
Saying it's wrong, saying it's right
Compelled by prescribed standards
Or some ideals we fight
For wrong, wrong and right
Threatened by all things
Man of cruelty-mark of Cain
Drawn to all things
Man of delight-born again, born again
Man of the laws, the ever-broken laws
Governing wrong, wrong and right
Governing wrong, wrong and right
Wrong and right

Let's finish with Gabby D on The Daily Show!

Love the clip!

Read more here: http://www.miamiherald.com/2012/01/31/v-fullstory/2615925/golden-years.html#storylink=cpy