Tuesday, March 31, 2009

Four Kluger Peretz Partners Fly To.....Akerman?



It's old news now to read of departures at Kluger & [partner to be named later], but to hear of four high-level lawyers heading to Akerman -- which has had its own shakeups recently -- is a fresh twist:
Akerman Senterfitt today announced the continued expansion of its Litigation and Bankruptcy practices, as Dee Dee Fischer, Andrew Gold, Jason Oletsky and Brett Marks have joined the firm as shareholders in the Fort Lauderdale office. Ms. Fischer, Mr. Gold and Mr. Oletsky bring extensive trial experience in complex commercial litigation for private equity firms on a national level. Mr. Marks is a seasoned attorney with deep involvement in bankruptcy, creditors' rights and workouts. All four were most recently partners at Kluger Peretz Kaplan & Berlin. And in the last few months, Akerman has added more than 30 new attorneys in Corporate, Litigation, Bankruptcy, Healthcare, Governmental Affairs and Public Policy as well as other practice areas.
First of all, congrats to this top-notch team and to Akerman for landing them.

But to our many Akerman insider readers, are things really as rosy as their PR department claims?

Boy they can do just about anything with numbers nowadays.

Monday, March 30, 2009

SFL Monday -- Michael Hanzman to Rule Ft. Lauderdale, Too.



Hi kids, well it's that day again.

We've previously discussed how recent criticism regarding the composition of the Federal JNC may impact Michael Hanzman's long road to a federal judgeship, and here we see his name in the mix again in this excellent John Pacenti column:
Even before a call for official applications, some prominent names are swirling in the Miami legal community to replace U.S. District Judge Daniel T.K. Hurley, who took senior status.

Federal Public Defender Kathleen Williams and Miami-Dade Circuit Judge Robert Scola are expected to apply. Sources say three other Miami-Dade judges — Kevin Emas, Mary Barzee Flores and Darrin Gayles — also plan to throw their hats into the ring.

Flores spent more than a decade as an assistant public defender before taking the bench in 2003. Emas was on the short list for the Florida Supreme Court twice last year.

Attorneys Michael Hanzman, a name partner with Hanzman Gilbert in Coral Gables, and Judith Korchin, a Holland & Knight partner in Miami, also are expected to be in the mix when the Federal Judicial Nominating Commission seeks applications. A notice is expected any day.

So far, the lawyers who are said to be interested in applying are exclusively from the Miami area even though Hurley sits in West Palm Beach. The Southern District has recommended to the administrative office of the 11th U.S. Circuit that the new judge be assigned to Fort Lauderdale, according to the office of Chief U.S. District Judge Federico Moreno.

Guy Lewis, former U.S. attorney and two-time candidate for federal judge, said some of those mentioned have called him about the process.

“It’s an excellent slate, but I think you will see a number of other people come forward, including sitting judges and judges from the 3rd District Court of Appeal. I think you will see a federal magistrate,” he said. “I don’t think the slate is complete. I think you will see a number of names come out of Broward County.”

Lewis said the Broward County bar is decidedly Democratic and played a key role in getting Barack Obama elected.

“I think a lot of weight will be given to Broward,” said Lewis, a name partner with Lewis Tein in Miami.

Mitchell Berger, a founder of Berger Singerman in Fort Lauderdale and a big player in Democratic fund-raising, said local bar politics will play as big a role as it does in state judgeships.

“People in the Southern District who practice in federal court are quite used to going to Palm Beach, Broward or Miami-Dade counties with respect to their cases,” he said. “I do think it’s important judges have a feel for their community in common law jurisprudence. In federal court, the community is the Southern District at large.”

The 56-member JNC will whittle the applicants to a handful to present to U.S. Sen. Bill Nelson, who make the final recommendation to President Obama. The U.S. Senate must confirm Obama’s pick for the position.

Hanzman has contributed to political campaigns for both parties. Among Hanzman’s contributions since 2000 is $15,000 to the Democratic National Committee and at least $4,000 to Nelson, according to the Federal Elections Commission. He also contributed $5,000 to Sen. Mel Martinez in 2004, according to the Federal Elections Commission.
Kathleen Williams and Judith Korchin are certainly prominent women lawyers, at least here in Miami, and both are well-known and respected among the federal judiciary. And Michael of course is eminently qualified.

But where are the powerhouse Hispanic applicants in this mix? And which Judge from the 3d DCA is Guy talking about?

(please no)

Friday, March 27, 2009

SFL Friday -- Multitasking The Weekend Away.


Kids, close your other seven browsers, stop updating your online profile, mute the conference call you are barely listening to, and stop text-messaging your kids for a moment.

It turns out that multitasking may not be a good thing:
[A]ccording to David E. Meyer, director of the Brain, Cognition and Action Laboratory at the University of Michigan, not only do mistakes go up when we multi-task, but it also takes us longer to complete a task, compared to if we did each task sequentially.

The other choice we have involves putting our full attention on one activity (and yes, reading Twitter or Facebook updates is an activity, so doing that while attending to another task is two, not one, activities). It turns out that we can accomplish more by focusing on one item, such as composing an email, with our full attention than if we continually toggle back and forth between composing the email and reading Twitter or Facebook updates. There is power in our undivided attention.

Maybe that's why Judge Moreno banned emails and so forth in district court.

Smart guy, that judge.

So it's a huge South Florida weekend and there's lots and lots to do. Tennis out on Key Biscayne, jazz all weekend at Dolphin Stadium, even the Dade County Fair just began on Thursday.

Boy I remember my first date at the fair, with a pretty girl I had a big crush on. Now it's true I was 37 at the time, but you know, those memories do live forever.

Me, I have packed my big bag of tricks because this is going to be a great weekend. Camera, check. Beat-up 8-track of Bolero, check. Assorted windsurfing items, check. Malaccan gin and cocktail onions, you bet.

Still, I am planning to do all things in moderation, and you all know how seriously I feel about charity. In fact, I urge you all to bid on this donated item and help out the New North London Synagogue, which could really use our help.

Hey, it's a mitzvah!

And remember -- one thing at a time, peoples.

See you all Monday and have a great weekend!

An Accountability Moment.


In David's trial:

Two federal prosecutors in Miami are being reassigned for their roles in the secret tape recording of a defense attorney and his investigator in a criminal case.

Court documents show that prosecutor Karen Gilbert voluntarily stepped down as chief of the Miami U.S. attorney's narcotics section. Prosecutor Sean Cronin asked to be transferred from the criminal division.

The U.S. attorney's office acknowledges serious mistakes in a decision to have witnesses tape conversations with defense lawyer David O. Markus and investigator Michael Graff. Markus wants a federal judge to order the government to pay his fees and costs because of the misconduct.

That's refreshing, huh? We've had way too few of these moments from our federal government over the last few years. We could use some more.

Thursday, March 26, 2009

UM Names New Law Dean; Kluger Breaks Up With Peretz


DBR reports:
Patricia White, a visiting taxation professor at the Georgetown University Law Center and former law school dean at Arizona State University, has been chosen as the new dean at the University of Miami School of Law.

The position was offered after interviews with a search committee and UM president Donna Shalala.
Does anyone know her? Congrats!

In other news, I took the Beatles break up hard, don't even get me started on Shields and Yarnell, and now I see more going on at Kluger & Associates, or whatever it is now named:
Kluger Peretz Kaplan & Berlin is set to become a 24-attorney litigation boutique of Kluger Kaplan as name partners Howard Berlin and Steven Peretz go their separate ways after 22 years.

Alan Kluger, a founder of Kluger Peretz, confirmed Peretz is taking members Michael Chesal and Leora Herrmann and launching their own intellectual property firm. Bankruptcy partner Howard Berlin has joined Berger Singerman’s Miami office along with former Kluger Peretz bankruptcy member Deborah Talenfeld.

Name partner Abbey Kaplan is remaining with the firm.

Kluger declined to say when the firm would officially change its name.

The changes take place in the wake of the departures of six transactional attorneys the DBR reported last week. Kluger said the firm is striving for a more narrow focus on litigation and bankruptcy litigation.
That's one way to do it. You know, you can get an even more narrow focus by simply having less attorneys working at the firm.

Just saying!

Who Is Bowman Brown's Mystery Man?



Remember when Bowman Brown nearly had his own Teevee show, appearing all over the media and sharing that now-apocryphal "brush with Stanford" anecdote? I love the anecdote personally, but even I started to wonder when I turned on iCarly and dang it! -- there he was again....

But it is such a great story. To borrow from Gore Vidal for a moment, the art of a good lawyer war story is to craft something that manages to burnish your own skills and competence at some other lawyer or judge's expense.

By that measure Bowman has hit it out of the park.

Still, there was always this lingering unanswered question:
"What he wanted to do was just not workable in my view, it was not anything I wanted to be near," Brown said. "I told him that I couldn't help him, so he went across the street and found somebody who could and set up in Miami."
So -- just who is Bowman talking about??

Now comes this tantalizing clue:

As part of his effort to locate and recover Stanford assets, Ralph Janvey, a court-appointed receiver, asked a judge to force the law firm Hunton & Williams LLP to turn over all records of its work for Stanford International Bank, according to papers filed March 24 in federal court in Dallas.

The Richmond, Virginia-based law firm rejected a Feb. 24 request to ship the receiver original files and billing records for Stanford’s foreign businesses, including the Antigua-based bank and operations in Ecuador, Panama and Grenada, according to Janvey.

“The Hunton & Williams law firm has declined to relinquish possession and control of records that are part of the receivership estate,” Janvey said in the filing. “Information regarding valuable assets belonging to the bank and other offshore Stanford entities may be found in the files.”

The law firm and one of its Miami-based lawyers, Carlos Loumiet, questioned Janvey’s jurisdiction over Houston-based Stanford’s foreign records. Janvey, appointed to recover assets to repay victims, said Hunton & Williams is providing only the requested documents for Stanford’s U.S. businesses.

We previously wrote about Carlos here (he was completely acquitted, by the way).

Now Carlos appears to only be representing his firm regarding the subpoena, from what I can tell.

But does this bring us any closer to solving the mystery?




Wednesday, March 25, 2009

3d DCA Watch -- PCAs And Crickets Edition.


Hi kids, oh yes the sun is shining, the wind is up, and our busy judicial scriveners to the south have been toiling in their hermetically sealed concrete bunker of justice, listening to the faint noises of both highway traffic and appellate advocacy as they work they way through their overloaded docket.

In this week's edition of 3d DCA Watch, the coffee-swilling robed ones mostly throw their hands up, sigh, issue a bunch of PCAs and call it a day:

Let's see, in the "Opinions" section, the first civil case is a one-paragraph per curiam.

The second one is a per curiam, with a case cite.

The third one is a per curiam, with a short opinion that doesn't shed much light on anything.

The fourth one is a per curiam, with a case cite.

Ok, here we go:

All Seasons v. Busca:

Judge Schwartz -- bring it!

This is a suit by condo homeowners against the association for failure to care for the building and common elements. The trial court appointed a receiver for the association. This non-final order of appointment was appealed.

Let's see what the very senior one has to say:
The association appeals and we reverse with directions to vacate the order because there is simply no cognizable basis for such an appointment in such a case.
[crickets chirping.....]

That's it?

No explanation for why the trial court appointed the receiver, or why the Court reversed? Just "no cognizable basis" and a few case cites and we're done. Oh well....

Gielchinsky v. Vibo:

Hey, an actual opinion! Wait, I take that back.

Apparently the law is that if you consent to a special magistrate for discovery disputes and the special magistrate gets too expensive, you can withdraw your consent and the matter goes back to the trial judge.

[crickets.....]

We needed an opinion for that?

Oh hail, I'm joining the judges and heading out to do some early windsurfing -- see you all soon!

What's For Dessert?


So let's get the important stuff out of the way -- an Akerman birdie reported that none other than the big man himself was spotted heading into state court on Flagler yesterday shortly before lunchtime.

Oh man, God help the poor sap he had for lunch.

What else? Did anyone else find this story a little odd:

Joel Jacobi, the Bal Harbour council member who tried to fight off allegations that he did not live in the village when he ran for reelection two years ago, resigned Monday.

The resignation came five days after the start of a civil trial challenging his election victory in 2007.

In his letter to the village clerk, Jacobi cited ''personal issues'' for his sudden resignation.

''I finally came to the difficult decision that I could no longer fight this matter,'' said Jacobi, who was a Village Council member for seven years. ``It has exhausted me both financially and emotionally.''

His last day in office will be April 1. The Village Council plans to appoint a replacement to serve the rest of Jacobi's term, which ends in 2011.

Jacobi, a family and personal-injury attorney, declined to comment.

His attorney, Joe Geller, said the resignation did not mean his client conceded he was ineligible to hold office.

The prospect of a lengthy and expensive trial and possible appeals was daunting, Geller said.

''You are talking about a job that pays $92 a month,'' said Geller, who would not reveal how much Jacobi has spent on legal fees. ``How much can you expect from the guy to sacrifice for a $92-a-month job?''

Jacobi's former opponent, Lynne Bloch-Mullen, filed the civil lawsuit questioning whether Jacobi was living in the village when he defeated her in April 2007 with almost 70 percent of the vote.

The civil trial began Wednesday in Miami-Dade Circuit Court.

Now Joel Jacobi is an attorney, and of course so is Joe Geller. They know roughly what the costs are going in, right? Shouldn't they have agreed on a sensible plan to reach the finish line on this matter?

Or did they already have a feel for the outcome?

Tuesday, March 24, 2009

Does Anyone Fact-Check Glenn Garvin?


I know they probably don't have many fact-checkers left over there, but still.

I mean, it's one thing when the burning issue is whether it was Danielle Brisebois or Soleil Moon Frye who starred in the revival of Hair that played at the old Konover Hotel back when it was owned by Abe Hirshfeld.

(It was a deliciously grown-up Danielle Brisebois, by the way.)

It's another thing when it's something of actual substance:
And that paled before the tragic memory loss of Democratic Sen. Chris Dodd of Connecticut, who was so freaked out by the bonuses that he proposed a special tax to take them back, forgetting completely that he was the one who stuck an amendment into the stimulus bill the Senate passed last month that specifically OK'd the AIG bonuses.
Oy.

Now what Glenn wrote is technically true, and yet utterly and completely false:
Dodd was pressured to put that carve-out in at the insistence of Treasury officials (whose opposition meant that Dodd's two choices were the limited compensation restriction favored by Geithner/Summers or no compensation limits at all), and Dodd did so only after arguing in public against it. To blame Dodd for provisions that the White House demanded is dishonest in the extreme....
In other words, it would be like writing "King George granted the colonies their independence" or "Japan sought to negotiate a peace with the Allies during WWII."

Hey -- all technically true, right?

Let's discuss something positive:
Lisa Pisciotta is an associate with Hughes Hubbard & Reed in Miami. An attorney for nine years, her practice concentrates on commercial litigation, products liability and intellectual property.

But on Friday, she had one thing on her mind — the defense of Daniel Gray, who was charged with misdemeanor driving under the influence in Miami-Dade County Court.

“It’s hard to get trial experience when your cases are worth $300 million,” she said Friday referring to the caseload she handles with one of her firm’s partners. “It’s also a side of the law you don’t see.”

Pisciotta is one of 23 attorneys participating in a pilot project spearheaded by the Miami-Dade public defender’s office to bridge an expanding budget gap.

Miami-Dade Public Defender Carlos Martinez already has won a court ruling — which is on appeal — that his attorneys are spread too thin to adequately represent clients charged with third-degree felonies. On Friday he made a public appeal for help from private attorneys who may want a bit of trial experience to consider participating in the project.
Now this is a great idea -- a way to match BigFirm attorneys, many of whom are looking for trial experience or just plain old-fashioned work -- with a desperate need for legal representation here in South Florida.

Good job all around (except you, Garvin).

Monday, March 23, 2009

SFL Monday Monday.


It's cold, rainy, dreary, and wet, everywhere I look there are toxic assets -- and I haven't even left my house yet.

Welcome to Monday.

Let's see, I like happy endings, don't you?

Here's one for the Carlton Fields white collar trial team of Mike Pasano, Paul Calli, and Marissel Descalzo, who represented attorney Luisa Inclan Bird:
A jury found Puerto Rico's former governor not guilty Friday on all nine counts including conspiracy, money laundering and lying to the FBI, concluding his monthlong corruption trial.

Anibal Acevedo Vila, who could have faced 20 years in prison if convicted, was the first governor to be charged with a crime since the island became a semiautonomous U.S. commonwealth in 1952.

Acevedo made the sign of the cross as he heard the verdict and began to cry, as did former adviser Luisa Inclan, who was also cleared of similar charges.

Judge Paul Barbadoro faced both defendants after the verdict. "This case has ended. You are free to go," he said.

The acquittal is a major blow to the U.S. Attorney's office, which prosecuted the governor in an election year — likely contributing to his defeat in one of the most lopsided elections in Puerto Rican history.

U.S. Attorney Rosa Emilia Rodriguez said Friday that she respects but disagrees with the verdict. She also denied that evidence was weak.

"The circumstantial evidence allowed for inferences to be made that the jury did not understand as such, but we accept that," she said.

In other words -- great prosecution, dumb jury. Congrats guys!

In other news, our elusive butterfly may have spread his wings again, and we are looking for Peggyann Delaney in connection with a 50th high school reunion. Any leads, please let me know.

Sheesh, what am I, the local pennysaver?

Sunday, March 22, 2009

Are You Friends Yet With Miami-Dade's Ballpark?



Hi folks, hope you all are having a great weekend.

I had to emerge from my weekend reveille to comment on how Miami-Dade's Ballpark has joined that annoying Facebook thingy where you have to list 25 random things about yourself:

Each alpha user annoyingly asked 25 friends to write 25 random things, too, and each of these friends' friends annoyingly asked 25 more, and so on, until this week, when the viral loop catapulted into the bizarro realm: 25 Random Things About Me, by Miami-Dade's Ballpark.

No. 2: ``None of the money used in my construction can go to other government services like education, police, public housing or parks. It's state law!''

No. 19: ``I'm ready for my close-up: I'll have some great views of the Miami skyline from the stands, which should be great for showing off the city during nationally televised games.''

No. 25: ``I'm beloved already.''

If this stadium were a person -- close-talking, unfunny, boastful but discomfitingly insecure -- you might de-friend.

And you might suspect that these Things About Me are not random at all. You might suspect that, coming a few days before the Miami and Miami-Dade County commission votes on the stadium deal, they read more like propaganda encouraging public support for a yes vote.

(Miami commissioners approved the stadium in a 3-2 vote Thursday; county commissioners will vote Monday.)

''This is not information,'' said Commissioner Carlos Gimenez, who opposes the deal. He claimed 11 of the 25 Random Things were inaccurate, and seemed unlikely to forward the list to 25 Facebook friends. ``When you put something down that says Miami-Dade County, it shouldn't just be a puff piece like this.''

No puffiness, said county spokeswoman Marie Bertot: ''It's not so much selling an idea as communicating information,'' she said. ``It's a way to disseminate accurate information and reduce those misconceptions out there.''

Oy. This is like when your Uncle crashed your high school party and tried to show all your friends how "hip" he is. And hit on your girlfriend.

Please stop.

In other news, here is another example of a governmental entity doing the wrong thing, litigating for no good reason, and having to pay a lot more as a result. By not coming to the table early and reaching a reasonable resolution, they incurred significant fees, paid a larger amount, and had to cover the plaintiffs' fees too as a result of a 3d DCA ruling on liability.

That's South Florida for you. Continue to make the same dumb mistakes and hope no one notices.

Well, it's almost Spring so enjoy this lovely seasonal ditty by Tom Lehrer and we'll see you all tomorrow!

Friday, March 20, 2009

SFL Friday -- Sun and Fun Edition


Well kids, another week is ending -- hooray!

And what did we learn?

That well-meaning populist outrage can lead to crappy legislation.

That some little pointless war is having its 6th birthday (they are so cute at that age!).

That there is some very kinky stuff going on inside the CIA.

Oh yeah, this one's my favorite -- that there is at least one tangible positive benefit to this awful economy. It's about time on that last one.

Well I have grand plans for the weekend, and I hope you do too. I plan to do a little bedtime reading, ponder how I can get an early copy of the new Dylan album, and finally learn how to properly smile.

Folks, be like me and put your well-manicured hands on something valuable and precious this weekend.

I always do.

Have a great weekend!

Tod Aronovitz Is A Mensch.


So I thought the Federation reception was pretty good for this type of event.

Lots of judges, some very touching speeches (Judge Gerstein introduced his family and longtime staff, to much applause), and Randy Kroner.

What more can you ask for?

Did you all catch this moving story about Tod Aronovitz' fight for justice for Leonard Krys:

On Nov. 30, 1991, Krys boarded a Lufthansa 747 in Miami, headed to a seminar in Frankfurt, Germany. About an hour out, off the Georgia coast, severe chest pains hit and he turned gray.

The pilot refused to divert or return to Miami. In legal filings, Krys described how a flight attendant forced him back to his seat after he lay down in the aisle, how some passengers complained that they couldn't see the movie because he kept raising his arms, and how other business-class passengers groused about not being able to smoke.

`HE REALLY SUFFERED'

Although a German gynecologist on the plane gave him nitroglycerin tablets, Krys spent nine hours gasping, sweating and clutching his chest.

''He really suffered,'' his wife said. The episode destroyed much of his heart-wall muscle.

''He was bedridden for months and lost his business,'' Sebastian said.

Krys won a lawsuit against Lufthansa in Miami federal court -- a non-jury trial -- which the 11th Circuit Court of Appeals upheld. The airline argued that the incident should have been classified as an accident, per the Warsaw Convention, capping his payout at $75,000.

The United States Supreme Court refused to hear the airline's appeal, and in 1999 awarded Krys and his wife $3 million.

''As a result of his seven-year legal battle . . . domestic carriers for the first time installed defibrillators onboard all their flights,'' said Miami attorney Tod Aronovitz, who represented Krys.

Several lawyers had turned down the case before Krys found Aronovitz, who said he saw ``an honest and sincere man who had undergone a nightmare. . . . He was a man with a very positive attitude toward life, and a pleasure to represent.''

Krys ''filed the lawsuit for all the right reasons,'' Aronovitz said. ``He was looking for an apology and to get them to be more customer-friendly.''

See, what do I always say -- you do well by doing good.

Thursday, March 19, 2009

Florida Supreme Court Upholds Lobbyist Restrictions


Hi folks, I've been busy meditating so I have the requisite mental energy to listen to a lot of boring lawyer war stories later today, but a dedicated reader passes along this Florida Supreme Court opinion released today that upholds the statute regulating lobbyists.

I found the Court's distinguishing of the respective roles of a lawyer as opposed to a lobbyist to be interesting, if somewhat narrow in my view.

Is that all we do?

Judicial Receptions Are For Lovers.


So who else is going to the Federation Judicial Reception tonight:
This year’s Judicial Reception will recognize three outstanding legal professionals in Miami, including the Honorable Joseph P. Farina, who will receive the Community Service Award; the Honorable Norman S. Gerstein, who will be honored with the Lifetime Achievement Award; and Richard C. Milstein, Esq., recipient of the Honorable Theodore “Ted” Klein Special Recognition Award.
I don't know about you, but I'm bringing a complete set of the Zloch/Moreno memos.

You never know when you need some good cocktail conversation material, right?

Seriously, congrats to those being honored, and thank you for your service.

Wednesday, March 18, 2009

"I Am Not Paying Any Money For Anything."


Boy oh boy what a disaster is unfolding in Judge Gold's courtroom, in the aftermath of the acquital of Dr. Ali Shaygan by uber-trial mensch David O. Markus:

U.S. District Judge Alan S. Gold, who held two days of hearings this week on the matter, said there were "flagrant violations" of basic rules by prosecutors and indicated he would likely order the U.S. government to pay the defense lawyers thousands of dollars in fees and costs.

"It's more than just mistakes. Important safeguards were not met," Gold said. "It doesn't seem like any facts were verified."

U.S. Attorney R. Alexander Acosta on Wednesday called the situation "regrettable" and said the allegations have been referred to the U.S. Justice Department for possible disciplinary action.

The misconduct claims arose earlier this month during the trial of Dr. Ali Shaygan, 36, who was accused in a 141-count indictment of writing illegal prescriptions including one that led to a patient's death from a methadone overdose. Shaygan, acquitted last week of all charges, had faced a minimum of 20 years in prison because of that person's death.

During the trial, Shaygan attorney David O. Markus found out by chance during questioning of a witness that his prior telephone conversation with that witness had been recorded. It later turned out that prosecutors authorized two witnesses - Carlos Vento and Trinity Clendening - to secretly record their phone calls with Markus and his investigator, Michael Graff.

At least one witness seemed to ask Markus to pay a bribe for testimony, according to the recordings. But Markus wouldn't go along.

"I am not paying any money for anything," the attorney said in one recording, according to a transcript.

In addition, Vento and Clendening had agreed to become confidential informants for the Drug Enforcement Administration - a critical fact never disclosed to the defense. Such information is important in criminal trials because a jury could otherwise never learn that the witnesses might have a bias in favor of prosecutors.

Of course David did the right thing -- no one would expect anything different. Can the same be said of the other actors involved in this tawdry drama?

David, always so serious.

Now me, if I had suspected the feds were recording me without my knowledge, I would have sang old Dr. Demento songs, Tom Lehrer, probably would have done a little Allan Sherman, you know, the classics.....hey my singing voice is quite good.

3d DCA Watch -- Rubber Biscuits and Wish Sandwiches Edition



Thank you Judge Salter!

You know, some weeks it ain't easy to write 3d DCA Watch. No offense to the judges, but it's hard sometimes to work with material like this:
In the case before us, the record reflects that Diaz presented sufficient evidence to submit to the jury the issue of whether Impex Logistics was Diaz’s “joint employer” or his “single employer.” Nevertheless, the trial court did not rule on the sufficiency of the evidence because it found that the “joint employer” and “single employer” tests were inapplicable. Instead, the trial court granted the motion for directed verdict because Impex Logistics had less than ten employees. However, there was sufficient evidence for the “single employer” and “joint employer” issue to be decided by the jury. Consequently, the trial court erred in granting Impex Logistics’ motion for directed verdict.
Zzzzzz. Huh, right, where was I?

My point is, as brilliant and as resplendently robed as our coffee-swilling brethren to the south are -- and please don't tell anyone -- but sometimes they write dull opinions.

So this week we are deeply indebted to Judge Salter.

Not because his opinion this week wasn't dull (oh hail it certainly was!), but because it contained this sterling footnote:
The court is reminded of the wistful adage: if I had some cheese, then if I had some bread, I’d have a cheese sandwich.
Hallelujah!! ZING!!

However, to be serious for a moment Judge, no self-respecting student of late 20th-century American culture could possibly reference the immortal "wish sandwich" without mentioning the mighty Blues Brothers! That's just not right!

Or, as Judge Elihu Smails might say, that would be illegal.

Contracts Are Sacrosanct (Except When They're Not).


I have to laugh when I hear things like this, from everyone's favorite reverse-Howard Beale, CNBC's Rick Santelli:
"If there were contracts in place that when the government came in to put the money in AIG, they didn't take care of these issues -- a card played is a card played, as reprehensible as it is."
Huh?

This guy must not do much civil litigation.

Or work for a union, which had to have their contracts abrogated and modified as a condition for receiving automaker bailout funds. But that was so long ago!

Still, for those of you who live in the real world and are curious about the various legal strategies that could be employed to force these bonuses to be returned, the New York Times asked six legal experts for their opinion here.

No surprises, as the doctrines range from rescission, reformation, modification, unconscionability, frustration of purpose, changed circumstances, etc.

In other words, you are correct, Mr. Santelli -- their hands are completely tied!

Tuesday, March 17, 2009

All Judge Zloch, All the Time.


Yes, this time it's about jurors and the intertubes:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”
If the Judge somehow shows up tomorrow in 3d DCA Watch, I am outta here!

Kiss the Blarney Stone, You Plebes!


So as I do every St. Patty's Day, my day began in the normal fashion -- an early morning viewing of the 1985 lost classic "Troll," while sipping a stiff Irish coffee, followed by a Murphy's/naturebee double shot chaser.

Oh it's gonna be a good day.

I then did a few edits to Judge Zloch's memo to Chief Judge Moreno, pdfed it on over to the courthouse, and then jumped in the hot tub for an extended bath. I even exfoliated!

Who knew by the time I got in this morning intrepid reporter Julie Kay was all over the story:
Recipients of the Zloch memo said they were stunned and certain Graham was not behind it. Moreno’s subsequent memos were sent internally only to members of the bench.

“This is family,” U.S. Magistrate Judge Peter Palermo in Miami said. “I love Judge Moreno. What Judge Zloch did was a surprise, and the way he did it. It’s a family affair. And I know Judge Graham is not that type of guy.”

When asked what he felt motivated Zloch, Palermo said: “The memo speaks for itself. You’d have to ask Judge Zloch.”
Just another day in paradise, people.

Sheesh it's not even 9 a.m. and my work here is almost done!

Monday, March 16, 2009

Shake Up At Kluger Peretz?


Alana Roberts reports:
At least six transactional attorneys have left Miami-based Kluger Peretz Kaplan & Berlin, and sources say two of the firm’s name partners may leave after a 22-year association as the firm reorganizes to focus on litigation.

Five transactional attorneys have left the firm, and one will leave the firm — known for its litigation and bankruptcy work — next week.

Meanwhile, sources say intellectual property co-chair Steven Peretz and bankruptcy co-chair Howard Berlin are planning to leave. Founding partner Alan Kluger declined to comment about their possible departures.

Calls to Peretz and Berlin were not returned.
I got a kick out of this comment:
“I’m building a national trial firm,” Kluger said.
Ok, but Alan, have you seen how national firms are performing nowadays?

SFL Monday -- Be A Hero, Just For One Day.



Hi everybody -- take a deep breath, it's Monday!

Those of you looking for work, take note: R. Allen Stanford needs a good civil litigator. Not sure how you'll get paid, though.

(Bowman Brown, you need not apply.)

Did you all catch this story on Julio Robaina, who tried to inject some flexibility into a bill before the Florida Legislature that would prohibit contingency fees paid to outside lawyers retained by the AG's office?

BTW, a similar amendment to the federal omnibus spending bill proposed by John Cornyn was roundly defeated.

Still, I thought Republicans didn't want to tie the hands of our best and brightest:

Senate Minority Whip Jon Kyl (R-AZ) blamed the "tone deaf" bankers for creating the political environment that allows Obama to call for a cap.

"Because of their excesses, very bad things begin to happen, like the United States government telling a company what it can pay its employees. That's not a good thing in America," Kyl told the Huffington Post.

"What executives have done is troubling, but it's equally troubling to have government telling shareholders how much they can pay the executives," said Sen. Mel Martinez (R-FL).

I happen to agree with this. Banks (and insurers like AIG) should be allowed to pay their execs whatever the market will reasonably bear. So should AGs. Why single out lawyers?

This heartwarming story about attorney Lorna Owens is a must-read:

They met four years ago in a classroom at the Women's Detention Center in Miami-Dade, the girl silent and suspicious of the lawyer in fancy shoes who was taking over her case.

Bianca Matthews was 16, facing 15 years for attempted murder.

Lorna Owens believed Bianca could be saved. She might be right.

Owens is hosting a fund raising brunch at the Ritz-Carlton Coconut Grove on Saturday; one of the beneficiaries will be Bianca, now out of jail with her sights set on nursing school.

See, you can make a difference. Thank you Lorna (you're a pretty decent author, too)!

Finally, I don't know about you, but I did an old-fashioned triple-oy spit-take yesterday reading this NYT article. I can't even properly describe it, delicate readers, however this excerpt should give you a small taste:

Another member, Racheli Cherwitz, 28, had spent years grappling with anorexia and alcoholism, she said. In search of identity, she moved to Israel and became an Orthodox Jew.

Discovering One Taste, she said, has improved her self-image and given her “deep physical access to the woman I am and the woman I want to be.”

Ms. Cherwitz commutes to New York and offers private sensuality coaching at a satellite outpost operated by One Taste on Grand Street. Many of her clients, she said, are married Orthodox Jewish couples from Brooklyn.

Boy oh boy we're a long way from Yentl.

Sunday, March 15, 2009

The "Quiet One" Speaks!


Hey, who knew Justice David George Harrison Souter was such a shmartie:

Talking about the importance of teaching history and the humanities in general, Souter displayed a warmth and wit that is at odds with his image as a Spartan, taciturn New Englander.

"Where history's understanding is missing, cynicism will take its place," Souter said at a meeting of the American Academy of Arts and Sciences.

So true! Here are a few truisms proven by history --
Absolute power corrupts absolutely.

Power arrogated to the executive is rarely relinquished voluntarily.

"Iron-willed" discipline to employ questionable methods for worthwhile goals usually is a bad thing.

Some Presidents are better than others.
I could go on.....

Friday, March 13, 2009

SFL Friday -- "I Shouldn't Even Be Doing This!" Edition


Some of you old-timers may recognize that as the punchline to an old Bob Newhart routine, but hey it's Friday and seems to fit, so what the hail.

I'm sure everyone by now has gone over to David's site to wish him congratulations on a huge victory -- what a win.

Well, I hope you all have great plans for the weekend. However, if you're looking for something useful to do with your hands you can find it right here.

Me, I'm outta here to do some early afternoon windsurfing.

You know me, I'm a nut when it comes to lengthening my lifespan and improving my health. Oh, I also plan to eat as much salmon and dark chocolate as I possibly can.

Boy, this staying healthy stuff is hard!

See you all on Monday.

A Tale of Two Dimonds.




See if you can spot the differences.....

I count at least three!

Alex Acosta to FIU Law?


John Pacenti breaks down the opposition to Acosta's appointment, based on his inadequate supervision of Bradley Scholzman, and his intervention in Ohio election law right before the 2004 election.

I previously reviewed the Scholzman matter here.

Regardless of your views on this, you gotta love being a member of the press and going to Marva Wiley, President of the Gwen S. Cherry Black Women Lawyers Association, for comment. She never disappoints:
Acosta sent the letter without prompting four days before the 2004 election to a federal judge in Ohio who was deciding whether to allow Republicans to challenge the registrations of about 23,000 mostly African-American voters. Acosta argued it would “undermine” the enforcement of state and federal election laws if citizens could not challenge voters’ credentials.

Acosta later said the letter was intended to make clear that anyone whose eligibility was questioned had a right to file a provisional ballot.

“He got into that unsolicited. Nobody asked him,” Wiley said. “He felt it important enough to involve the authority of the government on what many would consider a fundamental issue of equity.”
Wait a minute -- the point of the letter was to ensure that these minority Ohio voters could cast a provisional ballot? Oy.

You can read excerpts of Acosta's letter here:

Al Gerhardstein, the lawyer representing two civil rights activists who want the poll watchers banned, said Saturday that the Bush administration may have breached legal rules by contacting the judge by letter.

"It is totally unusual, it is unprecedented for the Justice Department to offer its opinions on the merits of a case like that," Gerhardstein said. "This is the civil rights division saying it is OK for voters to be ambushed when they reach for a ballot. That's how the letter reads to me."

The Justice Department's letter was faxed to Dlott in Cincinnati on Friday and made public Saturday. She could not be reached for comment Saturday.

Copies were sent to Gerhardstein and Ohio Attorney General Jim Petro, whose office is defending the state law that allows poll watchers.

While expressing the civil rights division's views, the letter did not ask the judge to let the Bush administration formally intervene in the case.

Instead, Assistant Attorney General R. Alexander Acosta wrote to the judge to advise her that "nothing in the Voting Rights Act facially condemns challenge statutes."

The Justice Department said poll watchers can aid election officials in eliminating fraud by spotting and weeding out people who should not have their ballots counted.

"Restricting the ability of citizens to make challenges when they have such information would undermine the ability of election officials to enforce their own state laws that govern the eligibility for voting," the letter said.

The government's civil rights lawyers also assured Dlott that no Ohioans will be blocked from casting a ballot Tuesday, even if they are challenged when they show up to vote.

The Justice Department said all voters will be eligible to receive a provisional ballot "even if they are unable to answer specific questions posed by election judges."

Provisional ballots, unlike regular ballots, are set aside and tallied later. However, the votes are counted only if the voter is determined to have met Ohio's requirements for residency in the precinct, for age and U.S. citizenship.

You know, we all did things during the war we're maybe not so proud of. Those were weird times. Hey, some folks did much worse.

Why look backwards?

This is Miami, after all.