Friday, December 21, 2007

Lost Horizon

I stopped for coffee this morning at the new Starbucks in International Place, or whatever the old Centrust building is now called. Strolling down near Wachovia, or whatever they are now calling that building, I saw the shoppers with bags, the pretty people going to holiday events, the lawyers on their crackberries, the women in sweaters and cold-weather boots, and the same homeless people I see every day, working the same patch of sidewalk they panhandle on every single day.

Does their rap ever work?

At the office, lots of holiday cards, a few bullcrap motions, a couple of meetings, a few loose ends wrapping up, but otherwise mostly quiet.

Then I got that wonderful verse from Coleridge in my head, and I couldn't let go of it:

In Xanadu did Kubla Khan
A stately pleasure-dome decree
I love the way that rolls off the tongue; why can't I write like that?
In Xanadu did Kubla Khan
A stately pleasure-dome decree
We're blessed, aren't we? Despite the headaches, the tensions, opposing counsel, judges, clients, partners, staff issues and the annoyances of our daily practice, we are truly blessed. We live in our own forms of "pleasure domes," our Lost Horizons, with our Lexuses, our gadgets, our suits, lunches, cigars, wine, gyms and all the other extravagances that take up such a large portion of our working day.

Think of those less fortunate today and this holiday season, and give so that others can share in our bounty. I may post sporadically next week and once or twice more this year, so before I lapse totally into Bill Murray's closing speech from Scrooged, let me just wish each of you, and yours, a peaceful, joyful, and prosperous holiday and a fantastic 2008!

We will be back posting as usual on Monday, January 7.

In the meantime, thanks for sharing, and for reading.

Thursday, December 20, 2007

Unintended Consequences, Part II

I've previously written about the Sarnoff memo, and whether it was a good idea for The Related Group to sue Sarnoff for defamation, if their goal was to make sure no one learned of the contents of the memo.

Fellow blogger Jared Beck does a quick analysis on the Third District opinion here, but I want to again return to the unintended consequences part, which the Third DCA memorializes in a nice causation chain for all to see.

In particular, the Third notes that Sarnoff refused to turn over the memo in response to a public records request from The Related Group.

Now query what would have happened if The Related Group left it right there. Would we be reading the contents of the memo this morning?

In any event, The Related Group immediately sued Sarnoff for defamation, in regards to the alleged contents of the memo. The Third picks up the tale:
As a result of The Related Group’s lawsuit, the Miami Herald learned of the existence of the May Memorandum and it too submitted a public records request to Commissioner Sarnoff seeking a copy of the May Memorandum pursuant to Chapter 119, Florida Statutes. The Related Group did not proceed with its suit and filed a voluntary dismissal of the same on October 11, 2007. On the very next day, October 12, 2007, the Miami Herald renewed its public records request for the May Memorandum to Commissioner Sarnoff. On that same day, The Related Group notified Commissioner Sarnoff by letter that it would reinstate its defamation action against him if he released the May Memorandum as a public record.
Unsure of his legal rights, Commissioner Sarnoff filed the declaratory judgment action below seeking a judicial determination as to whether the May Memorandum is a public record within the meaning of Chapter 119, Florida Statutes. The Miami Herald simultaneously filed its own complaint seeking production of the document pursuant to Chapter 119, Florida Statutes.
And there you have it, now we all get to read what Arriola allegedly told Sarnoff. See what happens with "aggressive lawsuits" sometimes? (In John's defense, maybe there were other issues at play here as well.)

And btw, what do you think of Arriola's response:'

'I never had that conversation with him,'' Arriola said. ``If Marc Sarnoff says that, he's lying, and I don't care if he's a commissioner.''

Replied Sarnoff, in an interview: ``I stand by the memorandum. It's accurate . . . What he chooses to remember now might be a memory of convenience.''

Hey, didn't Arriola negotiate the fire fee deal? Remember, this one:

Former City Manager Joe Arriola, who had hammered out the deal over a breakfast meeting with the plaintiffs' attorney, said he thought the $7 million would pay to settle with all fee-payers. Diaz said at the time that he had relied on Arriola to negotiate the deal.
Yep, this one:

A former assistant city attorney testified last year under oath that Miami struck the deal specifically to avoid a massive payout to its citizens. Miami's deputy fire chief said the same thing.
Boy I love living in Miami!

Wednesday, December 19, 2007

Dan Gonzalez vs. The World's Richest Man

Several pesky readers have taken me to task for not covering the latest news in the quixotic battle between Hogan & Hartson attorney Dan Gonzalez and Carlos Slim, The World's Richest Man ("TWRM"), previously reported on here.

TWRM is represented by local Yalie Angel Castillo, Jr. (by the way, Angel, this is a very good client to have).

Ok, you whiners, here you go:

''We can now move forward with our confirmation,'' said Daniel González, an attorney for Americatel who is with Hogan & Hartson in Miami. The rejection of the appeal by the court was final and could not be appealed, González said.

But Angel Castillo, a Miami attorney with Ogletree, Deakins who represents CTE, said the company had filed a constitutional challenge in El Salvador's Supreme Court, asking for ''protection'' against the lower court's decision. This is known as an amparo in Latin American law.

''CTE continues to assert that this is a domestic arbitration between two Salvadoran corporations, so that, in any event, rules of international arbitration do not apply,'' Castillo said.

''These are issues that are fairly new to the law of El Salvador so I think that the company will pursue all the legal remedies,'' Castillo said.

González said the Supreme Court appeal will not affect Americatel's efforts to proceed legally against any holdings of CTE's parent company, América Móvil, since the local court decision in El Salvador was final.

In Miami, Moreno originally ratified the judgment but later withdrew his order when he learned of the lawsuit by CTE in El Salvador. The decision by the Second Civil Chamber paves the way for Moreno to issue a new decision.

González said this should be the end of legal maneuvers against paying the judgment. ''They [CTE] have no order or any other basis to prevent the court in the United States from moving forward in the action to enforce our award,'' he said.

My question, in all such matters, is simply this: Who has the larger expense account?

Tuesday, December 18, 2007

Hey Now!

Whether you do plaintiffs or defense work, I hope you share my view that this report is a stinkin', heapin' load of crap and an absurd assault on our judiciary:

An advocacy group lambasted the South Florida courts Tuesday, calling them collectively the No. 1 ''judicial hellhole'' in the country.

Rankings released Tuesday reflect those areas that the pro-business lobbying group considers the worst legal venues for lawsuit defendants.

The American Tort Reform Association said it strives in its annual rankings to ``identify areas of the country where the scales of justice are radically out of balance, and to provide solutions for restoring balance, accuracy and predictability to the American civil justice system.''

The group said South Florida topped the latest list for, among other things, ``its reputation for high awards and plaintiff-friendly rulings that make it a launching point for class actions, dubious claims and novel theories of recovery.''

A spokeswoman for Miami-Dade County Circuit Court, Eunice Sigler, said the judges had not read the report and had no immediate comment.

South Florida is followed on the list by Texas' Rio Grande Valley and Gulf Coast; Illinois' Cook County, including Chicago; West Virginia; and Nevada's Clark County, which includes Las Vegas.

I remember when these jokers did a number last year on St. Claire County in Southern Illinois, with even the President making a drive-by attack on the judiciary there. Let's hope he passes on South Florida this time.

Monday, December 17, 2007

Top Real Estate Lawyer Didn't Understand Real Estate Loan Documents

That's a tough argument to make, but if anyone can sell it, it's Gerry Richman:

Feeling burned by a bad real estate deal? Real estate legal eagle and onetime bank chairman Conrad DeSantis can relate.

DeSantis is being sued over a personal guarantee on a $3.5 million loan for a failed Bahamian real estate venture.

It sounds like this should be a plain-vanilla lawsuit, but the dispute has turned into an extraordinary fight. That's because DeSantis, a North Palm Beach lawyer, has launched a blitzkrieg of paperwork against the lender, Cordell Funding LLLP.

DeSantis' main complaint: He and his company were "induced" into borrowing money for the real estate deal.

Tricked into a loan? Hard to fathom, given DeSantis' 41-year legal career as a virtual dean of the Palm Beach County real estate market. The Web site for his law firm, DeSantis, Gaskill, Smith & Shenkman, brags of his specialities in real estate and business law, "and in business itself." Included in his ventures: A stint as chairman of Enterprise National Bank in North Palm Beach.

But DeSantis insists in five thick volumes in Palm Beach County Circuit Court that he is a victim. Time and again, DeSantis claims he was fooled into onerous loan terms and exorbitant fees by Cordell, a private Miami lender. Through a company called North Andros Assets Ltd., DeSantis and partners borrowed from Cordell in 2005 to complete construction of nine Bahamian condos. DeSantis guaranteed the loan.

Among DeSantis' partners in the deal: Bahamian Sen. Philip Galanis.

All would have been well if Cordell had not delayed closing the loan, DeSantis alleges. The delay, plus piles of extra fees, ate up the money for construction of the condos. "They dragged their feet and killed the whole thing," said DeSantis' lawyer, Gerald Richman. He added that DeSantis was distracted by health concerns and wasn't able to focus as closely as he would have liked on the deal's machinations. The loan went into default in October 2006.

But Cordell and its general partner, Robin Rodriguez, aren't impressed by DeSantis' arguments. In court filings, Cordell calls its April lawsuit against DeSantis "a straightforward written guarantee agreement," despite DeSantis' 14-point counterclaim.

"I keep waiting for the kitchen sink. He's throwing everything else in," said Irwin Gilbert, Cordell's attorney.

Cordell also mocked DeSantis' bid to stall discovery. Case in point: DeSantis objected to the word "communications" in a request for written correspondence. DeSantis said the word's meaning is vague.

Cordell's response: Look it up in a dictionary!

Ugg. I like the way Gilbert told the reporter about objecting to the word "communications," as if to belittle everything else about the way Richman is litigating this case.

For all we know, given the context, this could be a perfectly valid objection.

The Magical Powers of Max Holtzman

Here is local attorney Max Holtzman, in today's Herald:

Max Holtzman, a Miami lawyer and fundraiser for Democratic presidential candidate Barack Obama, was in a downtown office building when he ran into a high-powered business consultant.

One of her major concerns about Obama, she confided, was his ``deep Muslim roots.''

''I told her that he's been a practicing Christian for a very long time,'' Holtzman said. ``I cleared the air, and now she's a great supporter.''

First of all, what kind of airheaded "high-powered business consultant" was this? Anyone with half-a-brain knows that Osama Barry Hussein is an addicted pot-smoking crackhead, yes, but absolutely not a Muslim.

Then, after one, incredibly short yet persuasive hallroom conversation with uberlobbyist Max Holtzman, this woman is completely turned around and is now "a great supporter"?

Boy, that guy is good.

Lord How We Love Melanie Damian!

Calm down, Chris. We mean that in a purely professional way.

Anyhoo, congrats to Timothy O. Schranck, who had the good sense to get hired by Ms. Damian and her partner Peter Valori, to head up the AV-rated firm's labor and employment practice.

Go get 'em guys!

Friday, December 14, 2007

Finally! A Feel-Good Lawyer Story

All you jaded, aging, balding, paunchy, sexually frustrated lawyers sitting at your desks, supposedly billing clients for screwing around most of the day, take note: this is an actual story about lawyering that may make you feel good. Briefly. There's only so much I can do.

Anyway, try to feel positive for a second and check out this story about an inspirational Nova Law Grad:

In New York, in 1988, he met Annette, 28 years his junior, and also from Sierra Leone. She studied business at Bernard Baruch College, and later worked as an assistant in the finance department at the U.N.

She was content at her job. But Abdul wanted more for her.

"To him, that was not enough, being someone else's assistant," she said. "He said, you can do better than this.'"

Eventually, he persuaded her to apply at NSU law school. But there were setbacks. Initially, Esliker-Kabia did not score high enough on the LSAT admission exam. Instead, she enrolled in an intensive, online program known as Alternative Admission Model Program for Legal Education, or AAMPLE, and passed that exam, winning acceptance to law school in 2003.

Her husband congratulated her with a copy of The Black's Dictionary, the standard legal dictionary.

That spring, the family prepared to move to Weston. Esliker-Kabia, pregnant with their fourth child, planned to start classes that fall.

Instead, in April 2003, Abdul Hamid Kabia was diagnosed with stomach cancer, a month before the birth of their son.

Esliker-Kabia postponed law school to take care of her husband, who soon learned he was dying.

Promise me you'll go to law school, if not for you, then for me, he told her.

"That was his last wish to me, and that was my promise to him," Esliker-Kabia said. "I saw my world collapsing in front of me. I thought it was a bad dream, a nightmare. Before he died, he said, 'we're not going to give up.' I said OK. But secretly I cried every day, from that day until the day he died."

In September 2003, just five months after the diagnosis, Abdul Kabia died. Intent on keeping her promise, Esliker-Kabia moved the following summer to South Florida, where she knew no one, and was now raising an infant and three children alone. She started school that fall.

"I was like a zombie at first," she said. "The first semester, I almost dropped out…I used my promise to him as my own way of dealing with this."

At school, she was back in jeans and sneakers and carrying a backpack, like her teenage daughters.

"It was kind of funny because we were all in school," said Anne-Marie, 17, her oldest daughter. "We'd say, 'How was school today, mom?' We had homework; she had homework. We'd make jokes, 'Let us see your report card.'"

Her daughter, Annette, 16, became her "legal secretary," helping with computer research. The older girls took over the housework, making dinner and taking care of their younger sister, Aisata, 9, and brother, Abdul, now 4.

"It was hard getting used to at first," Annette said. But, "there was no doubt in my mind that my mother would finish."

She would not have finished without her children, Esliker-Kabia said.

"The pressure was too much. My daughter said, 'Mom, you can't give up. We've come too far.'"

On Sunday, the children will accompany her on stage for the hooding ceremony. Esliker-Kabia cried the day she picked up her cap and gown, thinking that Abdul will not be there.

"I want my kids to see me as an example. That in the midst of adversity, you have choices to make. If they have a dream, I want them to say, 'If my mother can do it, I can do it, too.'"

Ms. Esliker-Kabia, I am sure I am not alone when I say this, but you can work here anytime.

Thursday, December 13, 2007

Law Firm Merry-Go-Round

I've been asked to comment on this fine group of attorneys from the Miami office of Pittsburgh's Buchanan Ingersoll, heading off to start the Miami office of Milwaukee's Foley & Lardner.

My comment: Congratulations. I hope this is a good fit. What else do you think I should say?

For the record, here are the intrepid lawyers venturing off into the new world:

The office will initially include nine attorneys from the Miami office of Buchanan Ingersoll & Rooney PC. Among these attorneys are William Davis, Guillermo Fernandez-Quincoces, Leslie Smith, Roy Barquet, Mark Neuberger, Darin Zenov, Alan Seagrave, Laura Ganoza and Christopher Furlan. These new attorneys will serve to complement Foley's well established international, corporate, intellectual property, healthcare and complex litigation practices in Florida and nationwide.
That's a solid group -- good luck folks.

Depressed Lawyers?

WSJ's Law Blog has an interesting post on why, at this time of year, so many lawyers are depressed. There is also a video of a lawyer's less-than-stellar reaction to being advised that he has become a shareholder (posted below).

What say you, South Florida? It's bonus time -- are you happy? Associates are being made partner -- happy? Salaries are being adjusted -- happy?

For me, I've had a good year, and I feel pretty good. But it's a fleeting feeling. Sometimes it does feel that this all is a house of cards and it all could come tumbling down. Then I get mad at opposing counsel and I start to feel good again.

Wednesday, December 12, 2007

Cranky Old Bar Legend Waves Kids Off Lawn, Remembers When We Didn't Use to Torture People So Much

Anyone remember when Talbot "Sandy" D'Alemberte gave a roundhouse punch to ole' Joe Klock on the 41st floor of the Southeast Financial Center?

No, me neither.

But let me guess -- you horndogs have frozen in your brain the moment you learned that his lovely and talented daughter Gabrielle posed for Playboy?

Yep, I figured as much.

Well, Sandy has an opinion piece in today's Herald, something about how we used to not torture people, or some such. Yada yada yada.

Sure, he's probably got something in there about wearing bowties, reading by gaslight, and waiting for the ice truck, too.

A Solitary Man?

Alert readers have directed me to this "Most Effective Lawyers" story regarding the settlement of long-pending litigation over the Bal Harbour Club, which involved more or less half of the South Florida legal community. I previously wrote about this case here.

I have been directed to review the article to see if any other lawyer was pictured, identified, quoted, listed, discussed, or even mentioned besides legendary litigator Michael Hanzman.

I could be wrong, but my painstaking research did not turn up anyone.

It has also been noted that the submission process to be considered for "Most Effective Lawyers" can begin by submitting a self-generated nomination.

And your point is?

To all those whiners out there who worked on this case and are complaining that no was else was pictured, listed, quoted, or even identified, I say to you: There is a reason Hanzman makes the big bucks.

Sheesh, get off your arses and submit your own nomination next time (assuming there is a next time).

Tuesday, December 11, 2007

"Thinking About Having Sex With a Co-Worker?"

You gotta love FoxNews, but that's the headline and graf for this story about hooking up at holiday parties:

‘Tis the season for mistletoe, but you could get yourself into trouble with your boss and co-workers, if you don’t play your cards right. After all, the holiday office party wouldn’t create such buzz if it didn’t have the potential to cripple your career. But before you go into bah-humbug mode, forgoing any passion or pleasures an evening’s festivities may invite, let’s take a look at the pros of going from mingling to making out to hooking up at a holiday office party.

First, while this may not seem like a pro to some, you could meet up with your future husband or wife. People have been known to find their life partner at the holiday party, which would ultimately undo the drawback of any ho-ho-ho status you earned prior to the wedding date.

Second, if you score with your boss, pending any pursuit of sexual harassment charges, you could end up with a nice promotion or some other perk in being the boss’ pet project, if just for a night.

Third, by earning the office floozy or stud title, you counter any word around the office that you are some boring, heartless Scrooge. You are, in fact, fun-loving and lovable and your post-party conquest may speak to that.

Fourth, you get to show off your dirty dancing skills, if not glimpses of your favorite lingerie, should you be sporting any. You may never be on “Dancing with the Stars,” but you’ll take five minutes of fame in fulfilling your amateur dream on the company dance floor anytime.

Finally, you’ve given everyone a night to remember. And if you didn’t use protection, you may have even gotten a souvenir or two out of it for yourself. Who doesn’t like a gift that keeps on giving?

Sound advice, probably vetted by inhouse counsel. Sure, there was some mumbo-jumbo about how this may not be a great idea after all, but I stopped reading -- who needs that buzzkill? Come on, we all have some legendary firm holiday hook-up stories, don't we?

Now excuse me I have to get my daily Neil Cavuto fix.

An "Ocean Marine Yacht Club" With No Marina?

Intrepid Magic City Harvard Lawyer Jared Beck filed an interesting class action suit against the developers of Hallandale's Ocean Marine Yacht Club.

The problem? No marina:

"We saw this beautiful marina in their literature and it sounded so wonderful that we would have a place for our boat and a magnificent view of the ocean and Intracoastal," said Andrea Perez, of New Jersey.

She and her husband put down a $160,000 deposit in 2004 on an $800,000, two-bedroom, two-bath condo. "It never crossed our minds there wouldn't be a marina. That was the big selling point."

Perez is one of three buyers who sued the developer, Fifield Realty Corp., of Chicago, in Miami federal court last month, demanding their deposits be refunded.

They claim Fifield misled them by promoting the marina as a marquee feature of the 283-unit development while failing to disclose it didn't have the necessary permits or approvals. Marina space is hard to come by in Broward.

"What you have here is a consumer situation of people buying a product and not being given all of the details at the time they make their decision," said Miami attorney Jared H. Beck, who is representing the buyers. He has asked the court to certify the suit as a class action on the basis that all buyers in the building have been harmed financially by the lack of a marina.
This is an interesting case. I would want to review the contract documents and see what disclosures, if any, were made about permits and so forth before pleading this on a class-wide basis.

If he can frame it as a straight omissions case, I would say Jared has a decent shot at certification. His individual clients are in very good hands in any event.

Monday, December 10, 2007

BREAKING -- Bobby Gilbert Wins Canker Liability Phase

Doesn't exactly roll off your tongue, but that's what happened:

The state owes fair compensation to nearly 41,000 Palm Beach County residents who had their citrus trees cut down during a failed decade-long effort to eradicate a harmful bacteria, a judge ruled.

Another case is under way in Broward County, and similar lawsuits are pending in Lee, Miami-Dade and Orange counties.

The class-action lawsuit was filed against the state Agriculture Department on behalf of David and Lillian Mendez of Boca Raton, who had their citrus trees cut down in 2001 as the state tried to stop the spread of canker.

The court found that the destruction of the trees constituted a ''taking'' under the Florida Constitution, ''requiring full and just compensation,'' Circuit Judge Robin Rosenberg wrote in her ruling late Friday.

A jury trial is set for March 31 to determine how much the state owes the plaintiffs.

''We were on the side of the good fight, and the judge recognized that the state can't take people's property without compensation,'' plaintiffs' lawyer Julie Littky-Rubin said Monday.

The Agriculture Department had no immediate comment.

Jury trial next up on damages.

Bonus Time!

So? Good, bad? Happy, sad?

Open thread for cheers and jeers. Or email me with your sob stories.

Jorge Fernandez Turns the Tables

Miami City Attorney Jorge Fernandez, embroiled in a probe by the State AG over expense account issues, served a subpoena on his bosses:

The lengthy request, filed by Fernandez's defense attorney, Barry Wax, asks for, among other things:

``All expense reports, expense affidavits, memorandums, receipts, vouchers and other documents submitted by all City of Miami Commissioners to the Finance Department for reimbursement of expenses paid to them by the City of Miami from 1998 to the present, and all memorandums, correspondence or e-mails approving or denying reimbursements.''

Fernandez is hired and fired by the City Commission. So how did this records request go over with his bosses?

''I think it's unfortunate that somebody would try to obtain leverage over elected officials when they're being investigated themselves,'' said Commissioner Marc Sarnoff. ``I was very disappointed to see that.''

Sarnoff said his office has nothing to hide. But he adds: 'It's not a valid criminal defense to say `Others do it, so why shouldn't I?' ''

City Commissioner Tomás Regalado, too, said there wouldn't be any questionable spending records uncovered from his office. ''I have never traveled with city money, and never requested any reimbursement from the city, so from me, he won't get anything,'' Regalado said.

No one has accused Fernandez of a crime. Yet as the city attorney braces for the possibility of charges, his lawyer said he's doing what any defense advocate would do.

''I'm analyzing every possibility in order to effectively represent my client,'' he said, ``so as to bring to bear appropriate information which will persuade the State Attorney's office that there has been no criminal intent.''

I certainly believe, as a legal matter, that how expenses were submitted and approved for other Miami officials is relevant (but not dispositive) to whether or not the City Attorney followed an established pattern and practice within the City for expenses for his own office. But as a political matter, given that the City Attorney is hired and fired by those he just subpoenaed, it's hard to say if this is a smart career move.

All I know is I would trust '85 UM grad Barry M. Wax's judgment on this issue way before I would that of the current City Attorney.

Friday, December 7, 2007

Happy Holidays!

Boy, what a day full of el crap.

How about you guys? A lot of nothing done -- phone calls, negotiations, drafts of documents, redrafts, more phone calls, stipulations. Someone even emailed me a "paperless order."

Man, I'm going home to relax and exchange a bunch of small gifts that will soon break with the family.

As my main man Hannukah Harry says:

"On Moshe!" cried Harry. "On Herschel! On Shlomo!"

Have a great weekend everyone.

"CIA Got Rid of Tapes Judges Wanted"

Not exactly a great headline for a lawyer, from today's Herald:

Zubaydah had been seriously wounded in a firefight before his capture and survived only because the CIA, which held senior al Qaeda captives in secret overseas prisons, arranged medical treatment, he said.

Hayden noted that President Bush said publicly in September 2006 that ``Zubaydah had more information that could save innocent lives, but he stopped talking.''

The tactics were adopted, he said, ``on a solid foundation of legal review.''

That foundation, crafted by lawyers from the Justice Department's Office of Legal Counsel, provoked controversy and would be voided if the pending federal legislation is enacted.

After the agency determined that ''its documentary reporting was full and exacting,'' Hayden said, it halted the videotaping in 2002. Another senior al Qaeda figure, suspected Sept. 11 coordinator Ramzi Binalshibh, was captured in the fall of 2002, but it couldn't be learned whether he was videotaped during questioning.

Moussaoui's lawyers sought access to about a half dozen al Qaeda captives, including Zubaydah and Binalshibh, while defending Moussaoui against capital conspiracy charges.

On their request, in May 2003, Brinkema ordered the government to produce any video or audiotapes in its possession of interrogations of unidentified captives, but was told none existed. In late 2005, months after Moussaoui pleaded guilty to conspiracy charges but before his death-penalty trial, the judge again sought any interrogation tapes and was again told none existed.

The development isn't expected to affect Moussaoui's case, because he pleaded guilty, and it would be unlikely that defense lawyers could prove that the tapes included exculpatory material.


Hayden said the CIA's inspector general examined the tapes in 2003. The tapes had no intelligence value, Hayden said, and given ''the absence of any legal or internal reason to keep them,'' they were destroyed because they ``posed a serious security risk.''

Sheesh, what would happen to one of us if we intentionally destroyed evidence after being twice ordered by a federal judge to produce it, and after telling that judge that the tapes do not exist?

Also, does this mean Padilla has a basis to seek a retrial?

Thursday, December 6, 2007

Witness Tampering in Broward?

That's the allegation made against Connecticut attorney Robert Reardon in a suit involving Donald Trump, pending before Judge Streitfeld in Broward.

Look at this list of characters -- Herman Russomanno, Larry Stumpf, Neil Sonnet, Scott Rothstein, let alone The Donald.

Sounds like fun.

Here's a snippet from the Herald:

The suit, filed in 2004, has stretched over three years. Trump sued former business associate Richard Fields, Power Plant and The Cordish Company because he said Fields cheated him out of the lucrative deal with the Seminole Tribe. He and Fields had been trying for years to strike a deal with the tribe to develop casinos with them.

The lawsuit alleges that Fields left Trump's organization and formed a partnership with Cordish while still allowing the Seminole Tribe to believe Trump was behind their efforts.

The witness-tampering motion, which will be heard by Circuit Judge Jeffrey Streitfeld early next year, accuses Trump's side of trying to suppress damaging testimony that could be offered by both Stone and Nicholas Ribis, former president of Trump Hotels and Resorts.

Supporting the motion: an affidavit by Scott Rothstein of Fort Lauderdale, Stone's lawyer and partner in their public relations and political strategy consulting company.

''The Rothstein affidavit establishes on its face a pattern of unlawful witness tampering in its most crude and offensive manner,'' the motion says.


In the affidavit, Rothstein said he was ''stunned'' by statements from Trump's lawyer during the meeting, which took place at Rothstein's Fort Lauderdale office on Valentine's Day.

Reardon told Stone and Rothstein during the meeting that one of the main issues in the litigation involved the statute of limitations. He then told them that '. . . Mr. Trump first learned of Richard Fields' involvement in the Seminole project from a newspaper clipping in January of 2001.''

When Stone didn't agree, the affidavit says, Reardon 'suggested that `it was important that [Roger Stone's] memory conform to his time frame,' and that 'maybe the best thing was for [Roger Stone] to remember nothing.' I was stunned by Mr. Reardon's statement and we concluded the meeting.''

Russomanno called the statements ``orchestrated, fabricated and baseless.''

Wow. You can review the motion here.

Question of the Day

Submitted by a reader:

Why are the same judges and lawyers always at Natural Chicken Grill whenever I go there?

Related: aren't you glad they went back to the fresh curry mustard sauce?

Wednesday, December 5, 2007

Joe Matthews, the Economic Loss Rule, and Arbitration

This is a great insight by Colson Hicks litigator Joe Matthews in this month's Florida Bar Journal:

Members of The Florida Bar who began practicing prior to 1986 have a completely different view of a legal doctrine known as the economic loss rule than those who became members of the Bar after the turn of the 21st century. Younger members of the Bar probably studied it in law school. Older members saw development of the economic loss rule as the creation of a legal doctrine out of whole cloth and observed that doctrine as it achieved near constitutional status. It has since settled back into equilibrium with other well-established tort and contract doctrines. Prior to the 1986 decision of the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986) (where Chief Justice Rehnquist famously expressed his concern that the law of contract might “drown in a sea of torts”), and the decisions of the Florida Supreme Court in Florida Power & Light v. Westinghouse Electric, Inc., 510 So. 2d at 899 (Fla. 1987), and AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla.1987), few lawyers and even fewer courts had ever heard of the doctrine. In less than 15 years, this judicially created rule became so prominent in Florida that one intermediate appellate court actually gave it the power to deny claimants recovery under statutorily created remedies. The Florida Supreme Court, adopting the dissent of Judge Gerald Cope of the Third DCA, reigned in the economic loss rule in Comptech Intern., Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219 (Fla. 1999), and subsequent decisions.

In much the same way that proponents of the economic loss rule vested it with near constitutional gravitas sufficient to reject the right of the state legislature to create remedies, the U.S. Supreme Court has done the same with respect to the FAA to preempt state arbitration laws and to apply in areas never contemplated by those involved in its adoption. The parochialism article fails to put the decisions of the U.S. Supreme Court into their proper historical context while characterizing the courts of Florida as “parochial” for being out of step with those Supreme Court decisions. While the conclusion that Florida law was out of step with several landmark arbitration decisions of the U.S. Supreme Court is undeniably accurate, the conclusion that this is the result of parochialism on the part of Florida courts is not.

Joe is so right. When I started practicing, all anyone ever asked me to research was the applicability of the economic loss rule in possibly killing a particular claim or suit. We briefed it constantly, dissected every new decision, attended seminars about it, wrote and thought about it constantly, discussed it all the time, and attempted to apply it to every single case that we came across.

Now, it's pretty much a limited defense, applicable in fairly discrete situations.

Is Joe right that everyone right now is "arbitration-crazy," the way we were all ga-ga about the Economic Loss Rule back in the 80s?

"By Next Year, Every Litigation Attorney in Town Will Have A Case Like This."

That's Miami Beach attorney Aaron Resnick (not pictured above), proprietor of the website, talking about cases seeking return of investor monies in failing South Florida condos.

From Rebecca Wakefield's column in the Miami Sun Post:

“The experience most people have is one of frustration,” says Resnick. “That it’s taking so long, they’re not getting answers and the only time they hear from the developer is with a letter telling them the day of reckoning is at hand.”

Apparently, Resnick tells me, there are a lot of laws on the books designed to protect new condo buyers, but few know about them. These laws give the buyer some room to cancel a contract, or get a deposit back, or renegotiate the price. Reasons could include if the buyer doesn’t close within two years of signing the contract, or if the developer suckers the buyer with false/misleading promotional materials or makes material changes to what was purchased.

“You would be very surprised how many developers didn’t comply with the requirements and therefore don’t get those protections,” Resnick adds. “This can happen on expensive units like the Apogee to smaller units like the Filling Station Lofts in the Design District.”

Resnick says he started getting the occasional call from unhappy buyers about a year ago. Now he gets four or five calls a day. “With 70,000 condos supposed to come online, if even 10 percent want to get out, that will be enough to keep everyone busy,” he reckons. “By next year, every litigation attorney in town will have a case like this.”

I'm not so sure about this. I've looked at a few of these cases too, and there are significant hurdles to recovering the deposit, although Aaron is right that there are several underutilized Florida statutes that can come into play.

I hope he makes a lot of money for his clients, and succeeds on a few of these cases so the law can be better defined in terms of the duties and obligations of the developers.

The photo, btw, is from one of those swanky South Florida condo launch parties from a few years back, which now feels like so long ago....

Tuesday, December 4, 2007

Did Greed Do in Dickie Scruggs?

I'm still in a state of disbelief over this indictment. While I am prepared to believe that Scruggs is a tightwad and potentially an ass when it comes to dealing with co-counsel over fees, I simply cannot fathom a situation where he would bribe a judge for $50k:

Attorney John Jones, currently involved in a case against Scruggs that led to the indictment of Scruggs, his son and three others, recently told The Associated Press that Scruggs becomes a different person when it comes to money.

"When the money hit the table, everybody's sense of what the cause really was changed," Jones said in the report.

He was speaking of an agreement between Mississippi Attorney General Jim Hood and State Farm Insurance Cos. that settled 640 Hurricane Katrina-related cases earlier this year. The policyholders alleged that State Farm shortchanged payouts, blaming more structural damage on flooding (covered by a federal program) than there was.

The Scruggs Katrina Group received more than $26 million when the settlement was reached. Jones was part of the group, though he began squabbling over how much he was owed. It led to a civil suit in Lafayette Circuit Court, and last week Scruggs was indicted for allegedly attempting to bribe Circuit Judge Henry Lackey.

According to the indictment of a federal grand jury, Scruggs, his son, co-worker Sidney Backstrom and Timothy Balducci and Steven Patterson of Balducci and Patterson, conspired to offer Lackey $40,000 to compel arbitration in the case with Jones.

"The three principals were Scruggs, Don Barrett from Lexington and David Nutt, had pretty much already decided that they were going to take 90 percent plus of the money," Jones told the AP.


Here is a fascinating interview with Jones, the lawyer who alleged he was not compensated fairly by Scruggs and who filed the lawsuit:

“I wanted a jury to hear it in Dickie’s backyard,” Jones says. “I wanted to ‘out’ this a little bit. I’d known he’d done this repeatedly to other lawyers, he and Barrett. They got them to do the work, but when the money came in, they’d just low-ball ‘em.”

The most puzzling question raised by Scruggs’s indictment, filed in federal court in Oxford on November 28, is why an attorney of Scruggs’s enormous success, stature and savvy — he has said that he recovered more than $840 million in fees from his role in orchestrating the $246 billion state tobacco settlements of 1997-98 — would risk it all with a small-scale bribe in what one chronicler of the situation has memorably described as a “cracker-ass fee dispute.”

Scruggs, who has pleaded not guilty to the charge, will have a simple answer to that conundrum: I wouldn’t, and I didn’t. (In today’s Wall Street Journal, see here, a close friend of Scruggs suggests that a young lawyer hoping to curry favor with Scruggs approached the judge without Scrugg’s knowledge.)

Accordingly, if prosecutors hope to persuade a jury that Scruggs did play a role in the bribe, they’ll have to take a stab at that difficult question: Why? Answering it will be all the more challenging given that the ruling Scruggs was allegedly purchasing from Judge Lackey was simply an order sending the case to binding arbitration. Such an order, in and of itself, wouldn’t even guarantee Scruggs any victory in the underlying dispute.

One possibility, of course, was that Scruggs was also planning to bribe the arbitrator, too. But that’s speculative, and certainly no one’s produced any evidence supporting such a theory.

But another possibility, suggested by Jones, is that sending the case to arbitration — which is ordinarily conducted confidentially rather than in a public courtroom — would have at least shielded the dispute from public view. In that sense, Scruggs might have seen arbitration as a victory in itself.

“Mr. Scruggs would’ve been, in his public persona, highly offended by those allegations” being aired in public, Jones says. “He has almost an obsession with image in the public.”

Here’s the timeline. Katrina hit the Gulf Coast in August 2005. The Scruggs Katrina Group (SKG) began forming that October. The joint venturers decided that the litigation would be financed by Nutt & McAlister, which advanced $1 million for the cause, and committed to putting up another million dollars per year for up to three more years, if needed.

If there were a recovery, attorneys would get their capital contributions and expenses back first, and then the Nutt firm would get 35 percent of the net, reflecting the extra risk it took in financing the venture.

But how the other four firms would divvy up the rest was not specified in SKG’s joint-venture agreement, drawn up in November 2005, other than that it would be in accordance with Mississippi ethics rules. (Those dictate that lots of factors, including risk, time, contributions to success and so on, all play a role).

Jones claims that someone had suggested getting more explicit about the split at the time the agreement was being drafted, but that Scruggs opposed doing so, and Jones was ultimately persuaded.

“Here I am, like Gomer Pyle,” says Jones, disgusted with himself in retrospect. “I said, Okay, let’s do it on trust and faith.”

Under Mississippi law, Jones says, if there’s nothing in writing on how to split the fees, the law presumes they’re to be split equally. Accordingly, he assumed that the starting point for negotiation would be that the Nutt firm would get 35 percent (as specified in the contract), and that everyone else would get an equal 16.25 percent share.

He knew there would be further adjustments from there, he continues, since the firms’ contributions were not equal.

“We had 1.5 lawyers on it full-time, a secretary and a paralegal,” he says, “while Scruggs had three lawyers and three or four paralegals; Nutt had 2 lawyers and untold paralegals,” and so on. He says his firm took the lead on all briefing, developing of legal theories, and deposing State Farm’s corporate and expert witnesses.

Then a big settlement with State Farm took shape in late 2006. The tentative agreement — announced in November, though not finalized till January — awarded about $89 million to 640 State Farm claimants, while calling for an attorneys fee award of $26.5 million.

When Scruggs called him on December 3, 2006, Jones recalls, he said that Jones’s firm would get $1 million, or less than 4 percent.

Jones rejected that, and over the ensuing weeks, the joint venturers upped their offer to 6.5 percent, Jones says.

Jones, on the other hand, was demanding neutral arbitration to allocate the shares, since that was the designated remedy for “any dispute” provided under a clause of the SKG agreement. Jones claims that he asked for arbitration 14 times in writing, and nine times orally, but was always refused. (Ironically, as we’ll see, after Jones filed suit against SKG, the parties’ attitudes toward arbitration do a 180; the SKG group then wants it, while Jones opposes it, prefering to stay in court at that point.)

But during negotiations, Jones’s joint venturers at SKG had some bargaining leverage. The SKG joint-venture agreement has a clause — the very first paragraph, in fact — which allows four partners to vote to expel the fifth partner at anytime.

“Four had the right to vote one person off the island for any reason,” admits Jones. In that event, the agreement says, the expelled law firm gets back its capital contributions, if any, but the provision doesn’t say anything about fees.

Another clause says that “agreement by 4 of the 5 venturers is required to distribute . . . fees.” (It’s unclear if this also means that four can forcibly apportion fees, too; Jones’s position is that it doesn’t. A copy of the SKG agreement is appended to Jones’s civil complaint, which is here.)

In late February 2007, Jones says, he threatened to go to federal judge L.T. Senter of Gulfport, Mississippi, who was presiding over the State Farm cases, and ask him to freeze the trust account holding the attorneys fees from the settlement.

The other joint venturers persuaded Jones to hold off and, instead, come to a meeting on March 2 at the Nutt firm’s offices in Ridgeland, a suburb north of Jackson.

“I’m mad at you, Johnnie,” Barrett told Jones, as Jones recalls it. “Nobody’s ever threatened to sue me before. I’m highly offended.” Barrett then demanded that Jones accept 6 percent then and there. If he refused, the other joint venturers would vote to give him just 3 percent and then expel him from the group.

Though Barrett initially demanded that Jones decide before leaving the room, according to Jones, he later relented and allowed Jones to go discuss the offer with his law firm partners.

But when Jones got back to his office in Jackson later that afternoon and “got on the e-mails,” he recalls, there were two waiting for him from the SKG group. One gave him less than a half-hour to get back to them with his final answer, and the next — written after expiration of the deadline — told him he’d been voted off the island.

In March, Jones filed suit.

Monday, December 3, 2007

"Many of Your Conferences Tend to Be At Places That People Are Going to Enjoy Going To."

That's Miami Chief Deputy City Attorney William Rossi, explaining in the Herald today why thousands in taxpayer funds were spent sending him to Hawaii for the ABA convention, and to Cancun for an ABA seminar.

Come on. This is an example of the type of half-truth that I have grown tired of as an attorney over the years. Sure, he's right, there are great seminars in exotic locales that are pitched to us all the time.

But we live in Miami, a place that apparently is still considered exotic when you are shelpper lawyer working in Des Moines. That's why there are a lot of great seminars right here in South Florida, as well as Orlando and Tampa. When you work for a poor city like Miami, shouldn't judgment and discretion counsel you to go to one of these local seminars instead?

And the ABA convention? The only attorneys who go to that work for big firms that are rolling in dough. Very little work gets done there, it costs a ton of money, and they are always scheduled someplace where you drop at least a few thousand to get there and back. If there was a legitimate reason for him to attend this particular convention, then why not just say that?

Well, he did attend one local seminar -- Screenwriting for Lawyers. Here's his explanation for that one:

Rossi said he took the class not because he was working on a manuscript, but because he thought it might include pointers on how to write legal briefs in attention-grabbing ways.

''Unfortunately, as it turned out, I think it was mostly focusing on how you write a screenplay,'' he said.

Ok, I don't really buy that he was clueless about the purposes of the course, but I give him credit for acknowledging that maybe it wasn't the best course he could be taking on the taxpayer dime.

As for his chief Jorge Fernandez, who I have criticized in the past, this is what the Herald found, in addition to the trips to Hawaii and Cancun for him and Rossi:

Fernandez's use of taxpayer money includes a roughly $300,000 renovation to his office, the purchase of two wide-screen, high-definition plasma televisions and the approval of thousands of dollars of travel, bonuses and other perks for the attorneys he supervises.

Those expenses are on top of the dozens of local meals Fernandez enjoyed using his $10,000 personal expense account -- including a $1,539 tab at the Rusty Pelican restaurant. State prosecutors are now investigating his expense account spending.

I have to be honest -- to me the plasma TVs and the office renovation sound reasonable. As he says, his office needed to be reconfigured to eliminate much of the outdated legal library, and they use the televisions for training, deposition review etc.

I don't know about the lunch expenses, but if he is truly meeting witnesses, experts, and interviewing staff etc., lunch at the Rusty Pelican isn't exactly Saturday night dinners at Nobu.