Tuesday, June 30, 2009

"Turn Your Heartache Right Into Joy"

Well there's a rose in the fisted glove
And the eagle flies with the dove
And if you can't be with the one you love honey.....
Can you believe Mark Sanford actually pulled out the "I did not sleep with that woman" defense:

Sanford also said that he "crossed the lines" with a handful of other women during 20 years of marriage, but not as far as he did with his mistress.

"There were a handful of instances wherein I crossed the lines I shouldn't have crossed as a married man, but never crossed the ultimate line," he said.

"The ultimate line" -- I like that a lot.

"Hey baby, ready to cross the ultimate line"? Once you go over, you never go back.

BTW, I've been working on maintaining my ultimate line for as long as possible -- it's a tantric sorta thing.

Hmm, two days of interviews with the AP, yet the reporter never managed to ask the Governor about squaring his refusal to resign with his public votes and denunciation of that other guy who never crossed the ultimate line:
In 1998, Sanford was a Republican congressman from South Carolina when he demanded "moral clarity" from Clinton and called on him to resign. "Very damaging stuff. This one's pretty cut and dried," Sanford told The Post and Courier in September 1998. "I think it would be much better for the country and for him personally [to resign]." So far, Sanford has not indicated that he has any plans to resign as governor.

Ok Governor, I think I grok you:
Don't be angry - don't be sad
Don't sit crying over good times you've had
There's a girl right next to you
And she's just waiting for something to do
Speaking of lovin' the one you're with, Michael Hanzman has gone and done it again -- effective July 1, he will be of counsel to his buddy Scott Link at Ackerman, Link & Sartory, P.A.

And his former partner and permanent citrus crusader Bobby Gilbert is now teamed up with Bruce Rogow and Jeremy Alters.

No snark; these are good fits all around.

Congrats boys, and good luck!

Layoff Success Story, Guest Blogging -- Oh Hail, Who Cares Anymore?

Hi kids, it's a dreary Tuesday and, for me, especially dreary due to the unexpected loss of Fred Travalena.

First Ed, then Farrah, then the Queen of Pop, and now this:
Fred Travalena, the master impressionist and singer whose broad repertoire of voices ranged from Jack Nicholson to Sammy Davis Jr. to Bugs Bunny, has died. He was 66.

Travalena, who began being treated for an aggressive form of non-Hodgkin's lymphoma in 2002 and saw the disease return last July after going into remission in 2003, died Sunday at his home in Encino, according to his publicist, Roger Neal. Travalena also was diagnosed with prostate cancer in 2003 but had been in complete remission since then.

Dubbed "The Man of a Thousand Faces" and "Mr. Everybody," Travalena emerged on the national stage as an impressionist in the early 1970s.

Over the next three decades, he was a headliner in Las Vegas, Reno and Atlantic City, performed in concerts around the country, appeared on "The Tonight Show" and other talk shows and starred in his own specials, such as "The Many Faces of Fred Travalena" and "Comedy in the Oval Office."
Now I'm officially sad, in a Nixon, Jimmy Stewart, Sammy Davis, Jimmy Carter, Clint Eastwood, Henry Kissinger, Bugs Bunny kind of way.

You young folks may not recall this, but in the old days entertainers used to play showrooms -- just like they have in your mythical, long-gone version of Las Vegas -- right here in South Florida.

The Deauville, the Konover, the Fontainebleau, the Eden Roc, all the big shots played the main room, the lounges, even the Chinese restaurants, and opened for the bigger big-shots, and it was a whole Larry King "loan me $50 dollars, see you at Wolfie's" kind of vibe.

Fred was here, funny as hail (well, it seemed funny at the time, was it the booze?) -- anyways, RIP.

Meanwhile, here's an inspiring success story about a Kluger refugee who has landed on her feet:
Apart from the crowded commute into Miami, Eleni Zarbalas Pantaridis was happy practicing law at Kluger Peretz Kaplan & Berlin. She specialized in mergers and acquisitions and also did some real estate work for the midsized firm. But in February, after nearly two years on the job, she was laid off, and by the end of March the firm itself was gone, too.

Pantaridis, 38, with three young children, found herself unemployed at one of the worst times ever for attorneys. Legal recruiters told her the job market was “flooded with unemployed lawyers.” The 40 lawyers who lost their jobs at Kluger Peretz Kaplan & Berlin were just part of a statewide trend. Big firms such as Holland & Knight, Hogan & Hartson and Shutts & Bowen also have laid off attorneys. Across the nation, some 800 lawyers and legal staff were laid off in a single day — Feb. 12 — just one week after Pantaridis lost her job.

But Pantaridis didn't just lay around, she found new work:
Pantaridis, who mainly works from home now, has opened a “virtual law office” in Boca Raton, where a receptionist answers the phone and where she can arrange to meet clients if necessary. She also works 20 hours a week for a Palm Beach County firm that specializes in bankruptcy law. Meanwhile, she’s networking in hopes of building her practice and has had success so far in attracting new clients. Within two months of going it alone, she was already matching the salary she earned at Kluger Peretz Kaplan & Berlin. “This has been a good thing,” she says. “I don’t see myself going to a firm again.
What did your Mom tell you about silver linings? Yes, Virginia, there really is life after Alan Kluger.

Blogging may be light as I have further Important Legal Stuff to accomplish this week (alright, I'm leaving town early for the 4th), but trusty big-shot-in-his-own-right Guest Blogger has agreed to lift the blog firmly out of the 70s and somewhat into the present.

Carry on, my wayward ones.

Monday, June 29, 2009

Ponder the Joys of Club Gitmo at the Four Seasons

Hey all you armchair warriors who think the untried, never-charged, indefinite detainees have it way too easy at Club Gitmo, come and join us as we show them how tough we really are:

Brigadier General Rafael O’Ferrall

Deputy Commanding General

Joint Task Force Guantanamo

Guantanamo Bay , Cuba

Guantanamo Today”
Tuesday, the Seventh of July

Two Thousand and Nine

from 6:00 - 8:00 PM

The Miami Ballroom at
The Four Seasons Tower
Sixth Floor
1441 Brickell Avenue
Miami , Florida
Admission Complimentary
Please R.S.V.P.
Rossy at Tew Cardenas, LLP
Hors D’oeuvres
Cash Bar

BTW, I found yesterday's article in the NYT on the litigation over the Four Seasons to be pretty fascinating. Much of it relates to the requirements of maintaining the Four Seasons "brand" in a deteriorating economy:
At Four Seasons hotels, they spell out your children’s names in chocolates, on plates in their rooms. They put limes and Valencia oranges in the gym water coolers. They buy the best televisions, and they assemble combinations of sheets, mattresses and pillows comfy enough to provoke an unbidden endorsement on Oprah Winfrey’s show:

Oprah: Favorite thing to sleep in for you?

Julia Roberts: A Four Seasons bed.

Oprah: Four Seasons’ bed is the only bed better than my own!
See, it really is just like Gitmo!

Bye Bye Havana Club.

Remember when you were growing up and cigars, poker, and Dean Martin were all considered "uncool"?

Pretty much the only folks smoking them were decrepit old guys like Buddy Young Jr. and maybe George Burns.

Funny, but old.

Then the 90s happened and suddenly everyone was a poker ace, loved cigars, and thought Dean Martin was the King of Cool.

Well, about 10 years too late the City Club decided to cash in on the trend and became a "cigar bar."

Lo and behold, now that cigars have receded to their pre-craze levels, the City Club has abandoned the concept:

The Miami City Club has ousted the private cigar club it brought in to run its 55th floor location in downtown Miami's Wachovia Financial Center in an attempt to revive its buttoned-down appeal.

The private club favored by executives for its lunchtime buffet brought in the Havana Club in 2006 to boost revenues with nighttime events and a more exclusive vibe: offering limousine rides to members attending nearby events and 24-hour concierge service. But even with a major renovation of the club, the changes weren't well received by members, according to a press release.

''We want to reach out and bring home members . . . who have not been as happy with the new club format and themes as we had hoped they would be,'' said board member Nabil Achkar.

Right -- they want the lunch buffet and also to be able to bill it to their law firms.

Not a hard formula, I think.

Also, I hear in about six years the City Club will be rolling out "flat bread" and possibly "paninis."

Friday, June 26, 2009

SFL Friday -- So, Did Anyone Die Recently?

Hi kids, since I'm a blogger I suppose I have to comment on all the dead folks who have died recently. That would include Ed McMahon (his performance as a slimy, lecherous boss in Fun With Dick and Jane was a keeper), Farrah Fawcett (who can forget her in a robe that just won't stay on, a bed, and a horny robot in Saturn 3), and of course Michael Jackson.

As sad as it is to say, Jackson's passing will inevitably help his legacy. Most artists have a creative window of three to five years, during which they produce their greatest work, followed by a lengthy fallow period with episodic glimpses of what made them so great in the first place.

Consider the case of Stevie Wonder. If Stevie had died right after producing his remarkable run of groundbreaking records in the mid-70s -- including Innervisions, Fulfillness' First Finale, and Songs in the Key of Life -- he would have been remembered as one of the greatest artists of all time with a career trajectory that would have generated dozens of amazing records.

Instead he lived and wrote a double-album about plants, produced one of the most annoying songs in world history ("I Just Called To Say I Love You"), and sang about having a "Part-Time Lover."


So Michael's relatively early passing will force us to reminisce and focus on all the good stuff (of which there was many), and not that awful last record or all of his bizarre personal issues.


Well, I'm off early today to take advantage of this glorious windsurfing weather.

I may head back to the office later today, but if not remember to speak to judges only in their right ear, consider the meaning of the "Coyote Syndrome," and think about joining an elite worldwide community.

Have a great weekend everybody!

Thursday, June 25, 2009

Song For The Courthouse Nightbox

I received a rather abrupt "Dear SFL" letter from one of my nearest and dearest true loves, the courthouse nightbox:
Severe cuts recently made to the Clerk's Budgets by the Florida Legislature have required significant reductions in personnel.

As a result, effective July 6th, the Clerk's office will no longer be providing additional hours for filing pleadings. Pleadings must be filed, no later than 4 p.m.

Well, I'm stunned. I mean, I knew we were having some problems, a little tiff now and then when I was trying to get something to the 3d and she was feeling...I don't know....cranky, I mean it's ok you don't always have to be in the mood, we can have different feelings at different times...but this?

So sudden, so curt.

There are so many things I wanted to say...... (sung to the tune of ELO's Telephone Line):
Hello. How are you?
Have you been alright, through all those lonely lonely lonely lonely lonely nights
That's what I'd say. I'd tell you everything
If you'd let me file one more thing yeah yeah yeah

Hey. How you feelin?
Are you still the same?
Don't you realize the things we did, we did, were all for real, not a dream?
I just can't believe
They've all faded out of view yeah yeah yeah yeah yeah

Doowop dooby doo doowop doowah doolang
Blue days black nights doowah doolang

I look up at the clock, the time you need ain't gonna see you through
And I wonder why the edits and spellcheck are taking way too long

Oh oh Courthouse Nightbox, give me some time, I just need 20 minutes more
Oh oh Courthouse Nightbox, give me some time, my runner is on his way

Ok. So no one's answering
Well can't you just leave the pleading outside the judge's door oh oh ooohhhhh
I'll just sit tight through shadows of the night
And hope the runner makes it there ok ooohhhhh yeah yeah yeah

Doowop dooby doo doowop doowah doolang
Blue days black nights doowah doolang

When I look up at the clock, the time I have ain't gonna be enough
And I wonder why the little typos and formatting problems are such a pain

Oh oh Courthouse Nightbox, give me some time, I just need 20 minutes more
Oh oh Courthouse Nightbox, give me some time, I just need 20 minutes more
Oh oh Courthouse Nightbox, give me some time, I just need 20 minutes more
Oh oh Courthouse Nightbox, give me some time, I just need 20 minutes more

Should Any South Florida Lawyer Charge More Than $1000 An Hour?

Hey, what a surprise -- they've printed all the love notes between SC Governor Sanford and his Argentinian mistress!

I particularly like this one:
“…please sleep soundly knowing that despite the best efforts of my head my heart cries out for you, your voice, your body, the touch of your lips, the touch of your finger tips and an even deeper connection to your soul.”
Man, that dude is smooth! Even I'm getting a little turned on.

I understand the Governor -- who gave an A+ press conference BTW -- has not decided whether he will step down, even though he voted for three articles of impeachment against President Clinton based on Sanford's demand for "moral legitimacy."

Oh well, the heart wants what the heart wants, right?

So, slightly late to the party, Patrick Danner files the 315th adoring profile of Miami White & Case bankruptcy attorney Thomas E. Lauria.

One tidbit that came out of Patrick's story -- Tom bills at $1050 an hour.

Should any Miami lawyer bill that much?

Bankruptcy lawyers, help me out here -- Tom has billed millions of dollars to hard-hit pensioners in what Bruce Rogow politely describes as a "quixotic venture" to derail the Chrysler reorganization, with little tangible signs of success -- strike that, there has been a huge elevation in Tom's profile.

Listen, I'm in favor of lawyers making money as much as anybody else, but I'm having some trouble understanding what Tom has achieved in this representation. Has he improved the negotiating position for the pension funds?

What exactly is the end game here?

Wednesday, June 24, 2009

Rosemary Usher Jones, RIP

The Herald is reporting the death of Judge Rosemary Usher Jones.

Rosemary Holmes Usher Jones, a former Miami-Dade County Circuit Court judge in the juvenile and civil divisions, died Tuesday of cancer. She was 80.

The longtime Coral Gables resident had been living at East Ridge Retirement Village, Cutler Bay, for several years.

Jones won her seat on the bench in 1984, a political unknown who came with endorsements from the National Organization for Women and the Miami-Dade County Police Benevolent Association, as well as kudos for helping establish the county's first crisis-intervention phone line.

But Jones is also remembered for a terrifying ordeal that nearly took her life -- and for her gesture of gratitude in its aftermath.

During the Overtown riots of late December 1982, Jones found herself trapped in her Volvo by an angry mob. Attackers broke a window, yanked the doors open, grabbed her jewelry, then tried to drag her away. Two 15-year-old girls saved her.

She established a college scholarship for them. Later news reports said that one girl attended Miami Dade College.

She was tough and not everyone loved her, but she had a great sense of humor and clearly enjoyed being a judge.


3d DCA Watch -- Holistically Fiscing The Public Edition

Do you ever open up your office window on a late Wednesday morning and just scream "HOORAY!!!" because you know the 3d DCA has released another set of brilliant opinions?

I don't know about you, but I'm swooning this morning as the latest missives are released from the fortified concrete bunker of justice, where coffee-swilling robed ones frolic amid apodictic affirmances, at the only place in America where you can both obtain a reversal and also see an FIU football game, yes it's our one and only, patented 3d DCA Watch:

Eastern Atlantic v. GSOMR:

Oh boy, here we go again, another screwed-up area of the law, this time offers of judgment.

The Rule, the statute, the case law -- who the hail knows? How hard would it be to make these things consistent?

Here the mighty Jack Reiter convinces Judge Lagoa that the offer was not ambiguous:
While Rule 1.442 requires a proposal for settlement to state with particularity any relevant conditions and all non-monetary terms, the Rule “merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008), review denied, 5 So. 3d 669 (Fla. 2009) (quoting Nichols, 932 So. 2d at 1079). Moreover, a proposal for settlement does not require more than “a summary of the proposed release.” Nichols, 932 So. 2d at 1079.
Yeah, exactly -- the Rule says you need to state the conditions and nonmonetary terms with particularity, but case law says it just needs to be sufficiently clear and can merely be a summary of the proposed release.

How much clearer can you get?

City of Sweetwater v. Alvarez:

Like Moses and the burning bush, or Mickey Mantle and the bottom of the 9th, Judge Shepherd has been "called upon" and is "required to" interpret the statute governing when police officers can hire their own counsel to defend against criminal charges brought by a municipality:
Interpreting the statute holistically, as we must, it is clear a fee applicant must first request the employing agency to “designate[]” an attorney to represent the officer. § 111.065(4)(a), Fla. Stat. (2004). If the law enforcement officer is unsatisfied with the employer’s choice, then he may either “1. Select from a list of attorneys provided by the employing agency; or 2. Choose his or her own attorney.” § 111.065(4)(a)1, 2, Fla. Stat. (2004). This reading of the statute is consistent with section 111.065(3)’s admonition that “[t]he employing agency shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court.” § 111.065(3). The first clause of this sentence would be superfluous if the only obligation of the employing agency is to “pay.” See Am. Home Assurance Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 2005) (quoting Hechtman, 840 So. 2d at 996) (“‘[S]ignificance and effect must be given to every word, phrase, sentence, and part of the statute[,] if possible, and words in a statute should not be construed as mere surplusage.’”).

The statute is thus a legislative compromise between protecting law enforcement officers from being impoverished and the employer’s need to protect the public fisc.
Balancing these interests, the Florida legislature has determined that police and correction officers in this state must afford the governmental entity the opportunity to provide legal representation before seeking reimbursement of attorney fees and costs under the statute.
I happen to agree with the Judge on this one, though he seems a wee bit defensive in performing the perfectly normal judicial exercise of interpreting a statute.

It's ok, Judge, that's what appellate courts do -- just ask Judge Sotomayor!

(Or Justice O'Connor, for that matter.)

Infante v. Vantage:

Oh man, here comes another perpetually messed-up area of the law -- this time it's default judgments again:
The standard of review of an order that vacates a final judgment by default as void for a complaint’s failure to state a cause of action is de novo. See Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000). As this Court stated in Cruz v. Domenech, 905 So. 2d 938, 940 (Fla. 3d DCA 2005), “[i]n determining whether [the trial court’s] jurisdiction to grant a particular form of relief has been properly invoked by the pleadings, the trial court must be guided by whether the pleadings provided the parties with sufficient notice that matters related to such relief would be at issue.”

We disagree with the trial court that count I failed to state a cause of action for an accounting based upon certain technical deficiencies of the complaint. Count I stated a cause of action for accounting. Infante detailed at length the nature of the claim filed against the defendants, stated the relief she sought, and she alleged that the defendants had failed and refused to give her the accounting she requested. The complaint thus placed the defendants on sufficient notice of Infante’s demand for an accounting. The trial court thus should have upheld the final judgment by default on this basis.
Does anyone else think it's a dumb standard that the trial court basically has to conduct a motion to dismiss analysis in determining whether to vacate a final judgment by default? And the whole thing goes up de novo to the appellate court anyway?

Guess it guarantees a steady caseload before the 3d, if nothing else.

Arvelo v. Park Finance:

Ahhh Judge Salter, the voice of calm cool reason:
Statutes of limitation are intended to encourage the enforcement of legal remedies before time dilutes memories, witnesses move to greener pastures, and parties pitch out (or “delete,” in the electronic age) old records. Under Park Finance’s theory, the statute of limitations applicable to a secured loan in Florida would be almost ten years rather than five years. A creditor could hold collateral for almost five years after default, then liquidate it, and then wait another five years to sue for a deficiency.
Yeah, so? She bought a crappy used Daewoo, didn't she? What's wrong with the debt outlasting the car by at least 10 years?

Sheesh, in this edition we have judges interpreting statutes AND showing empathy.

Now you know why I'm so darn happy.

Are You A Rude Lawyer?

What a crazy morning, how about you?

Note to hipster ahead of me in line at the Starbucks by the Courthouse on Flagler this morning -- you do not look "cool" in your ironic fedora, particularly when you are ordering a mocha frappachino. Man up, dude.

Anyways, what do you all think of Blackberry addicts who are busy screwing around on their smartphones at depositions, meetings, and even in the courthouse?

Are you being rude or merely multi-tasking when you are playing breakout on your phone during a boring deposition:

As Web-enabled smartphones have become standard on the belts and in the totes of executives, people in meetings are increasingly caving in to temptation to check e-mail, Facebook, Twitter, even (shhh!) ESPN.com.

But a spirited debate about etiquette has broken out. Traditionalists say the use of BlackBerrys and iPhones in meetings is as gauche as ordering out for pizza. Techno-evangelists insist that to ignore real-time text messages in a need-it-yesterday world is to invite peril.

In Hollywood, both the Creative Artists Agency and United Talent Agency ban BlackBerry use at meetings. Tom Golisano, a billionaire and power broker in New York State politics, said last week that he pushed to remove Malcolm A. Smith as the State Senate majority leader after the senator met with him on budget matters in April and spent the time reading e-mail on his BlackBerry.

The phone use has become routine in the corporate and political worlds — and grating to many. A third of more than 5,300 workers polled in May by Yahoo HotJobs, a career research and job listings Web site, said they frequently checked e-mail in meetings. Nearly 20 percent said they had been castigated for poor manners regarding wireless devices.

Despite resistance, the etiquette debate seems to be tilting in the favor of smartphone use, many executives said. Managing directors do it. Summer associates do it. It spans gender and generation, private and public sectors.

A few years ago, only “the investment banker types” would use BlackBerrys in meetings, said Frank Kneller, the chief executive of a company in Elk Grove Village, Ill., that makes water-treatment systems. “Now it’s everybody.” He said that if he spotted 6 of 10 colleagues tapping away, he knew he had to speed up his presentation.
Personally I think some latitude should be shown to lawyers who use their smartphones to stay in touch with the office and respond to emails from opposing counsel and so forth. The device is one of the reasons the lawyer is able to be out of the office in the first place.

But in court it's a definite no-no -- you should really leave and go outside to tap away, and in face-to-face meetings I think maybe once or twice during a lunch might be ok but checking every five minutes makes you look like a fidgety schmuck.

Tuesday, June 23, 2009

More Things I Love About Miami

So I saw Judge Seitz and Raoul Cantero chatting briefly at lunch today, no doubt busily dissecting SexyLexus and the various noncomments about the story that appear in Vanessa Blum's excellent front-pager today in the DBR.

What makes me most happy about this story is that you guys have really spiced up the DBR comments section. Consider the one from "Gary" that was posted at 1:45 today -- I sure hope that makes the paper tomorrow!

Meanwhile, signs of the recovery are everywhere -- from the "Transit Service Center" near the Omni to that spiffy new "Parking Cashier" at the James L. Knight -- things sure are shaping up around here.

Neil, God!

Well that about does it for me and AM radio.

I'm still processing the news that Neil will be off the air in South Florida.

Anyone who grew up here in the 70s and had any sense of humor at all listened to Neil, and what a run it was. Talk radio had a bunch of freaks back then -- Neil, Steve Kane, Alan Burke, Bill Calder, Hank Goldberg, Larry King, I could go on -- but Neil was the funniest, and the best.

Whether it was his mid-70s "topic radio" period of Jews marrying Catholics, abortion rights, and all that stuff that still makes Glenn Garvin really really angry, to his great show on Zeta-4 to his coverage during Hurricane Andrew or 9/11 to his contentious final run, Neil was a constant, a source of opinionated intelligence, smarts, smart-aleck humor and personality, and a softie at heart who always loved his mother. It's a testament to the quality of his show that I often disagreed with him but still always wanted to hear what he had to say.

I hope he gets his posterior onto Sirius and keeps on shining a light up the arses of the pompous, the clueless, the corrupt, and the incompetent.

Steel Hector = South Florida's Woodstock?

Hi kids!

Let's give big props and thanks to Guest Blogger for so ably stepping up, stepping in and holding down the fort while I attended to Important Legal Matters.

Not only is that kid a tremendous lawyer -- he's a darn good blogger!

I think I handled the Important Legal Stuff pretty well myself, though there's always room for improvement. For example, next time I probably won't start an evidentiary hearing by asking the Judge if she would like one or two cocktail onions in her dry Gin Gibson.

Also, it's probably best during oral argument to not to refer to myself in the third person.

Who knew?

Anyways, thanks for the three thousand emails I received regarding the SHD reunion held Friday. You can see the pictures from the big event here.

You know how everyone from the 60s claims to be at Woodstock?

I think SHD is kinda like that -- everyone I know claims to have worked there at one time or another. Can that be possible?

Judging from the photos, it looks like there may be some merit to the claim.

Monday, June 22, 2009

Yes, Virginia, there is a S.E.C.

The Securities and Exchange Commission, at least in the Southern District of Florida, is comprised of an incredibly talented group of smart, aggressive experienced lawyers who for the last two decades, have worked tirelessly to rid South Florida of financial crime. Every single day from 9 a.m. to 3:30 pursuant to union rules, the brave lawyers at the S.E.C. lay it on the line as the Protector of the People, the gatekeepers who ward off financial fraud in South Florida. And darn it, far be it from us to Monday Morning Quarterback their efforts. The proof is in the pudding, and financial fraud has pretty much been eradicated in South Florida.

So imagine our dismay upon reading that President Obama's administration is considering shifting some of the Commission's jurisdiction to other agencies. Specifically , the Commission may lose authority in three areas: 1) to the Federal Reserve Board to the extent that the latter is made the "systemic-risk regulator"; 2) to the Federal Deposit Insurance Corp. as the new czar over the liquidation of troubled financial institutions; and 3) to a new consumer protection agency that may be given broad jurisdiction over consumer financial products. I'm still scratching my head regarding the wisdom of divesting a regulatory agency of authority, when it is firing on all cylinders and fulfilling its charge.

As I read it, the proposed changes would pretty much leave the S.E.C. free from the distraction of silly stuff like Madoff and Stanford , so it may focus on the challenge of ferreting out sophisticated boiler room pump and dump penny stock manipulators in Boca.

Well, that's it for me. Its been my privilege to keep the chair warm and serve as Toymaker to The King. Like you, I look forward to the return of The Big Man. I'll leave you with a final tune, and share what I hope is a very wrong rumor: word on the street, or at least in the Federal Judicial Law Clerk Circle, is that Magistrate Judge Garber intends to announce his retirement. That would be a bad thing, because Judge Garber for his tenure on the bench has distinguished himself as one of the best, and a jurist of unwavering fairness and intellect. If true, we will miss him.

Rumors of Our Demise are Greatly Exaggerated

I don't know about you, but I am sick and tired of the constant analysis of the law business and the portrayal that because law firms are making cuts and changing strategies, the legal system as we know it will cease to exist.

Okay, Okay: I know its not that extreme, and I realize we present an easy target for bashing and that folks - including our clients, behind our backs - may quietly cheer our collective need to tighten the belt and reassess. But that's just it: its not rocket science. The party is over. Like everyone else, lawyers, practice groups, business models and law firms or offices that were infirm to begin with but merely benefited from the rising tide that lifted all windsurfers, have failed. And, frankly, good riddance. Pruning is good. Change is good. Gin, is good. I digress.

Some firms are already hitting the "reset button" and starting to see change, while others ignored "reset" and chose to reload. (I would like to have the clout to join a Really Big Firm, open its new office in a wonderful foreign locale, and add my name to the door. "Morrison Foerster & Guest Blogger/Jones, Day and Guest Blogger proudly announce the opening of their Amsterdam office." Digressing further, did you know they have an office in Amsterdam? If he is not tending to his important legal stuff here, my guess is he is likely in Mokum sampling, er, testing legal theories and performing legal research.)

Anyhoo, we are midway through the third year of what smart people say will be a three year downturn. The lawyers and firms that survive, remain healthy and utilize the three year period to reassess the way they do business, are going to come out like gangbusters and possibly reshape the legal landscape. Word.

Sunday, June 21, 2009

Happy Father's Day

Raise a glass to The Old Man, no matter.

Friday, June 19, 2009

Drunk Blogging, Financial Fraud, and Mayer Brown

You have to think that once SFL takes a break from various important legal stuff and checks his blog on the blackberry, the title to this post will cause him to pucker. That's pretty funny, and I'll drink to me, since I'm the only one to date who gets to give The Big Man grief, posting on his blog.

Anyhoo, we here at South Florida Lawyers prefer to leave analysis of criminal law issues to that stud across town , but this case caught our eye for a couple reasons. First, Mayer Brown is a fairly fancy Big Law firm, and the Refco Scandal has dinged the firm pretty darn good. Second, its never pretty when lawyers and clients start airing their dirty laundry in public. In Federal District Court. Before an impartial jury of 12 men and women. When rival Big Law firm partners join in the fray like its a bench clearing brawl, however, someone is going to lose an eye.

For those of you not in the know, Mayer Brown partner Joseph Collins, 59, is charged with conspiracy, multiple fraud counts and making a false Securities and Exchange Commission filing. Prosecutors have claimed that Collins helped orchestrate hundreds of millions of dollars in sham loans that eventually bankrupted Refco and forced the company to liquidate.

They tell me that in criminal cases, a good prosecutor proves a motive. They tell me that in federal white collar financial fraud cases, the motive is money. Collins allegedly was motivated to maintain the deception because Refco was his largest client, bringing Mayer Brown more than $40m in fees between 1997 and 2005.

$40 million. In eight years. From one client.

So you gotta think, the dude probably hired a smart lawyer, right? Someone who understands that on these facts, with the staggering amounts of money and sophisticated players involved, a credible defense is essential to winning an acquittal. The last thing you want to pull is the "Don't ask me, I just work here" defense. Right?

Goes to show you what I know.

The New York Law Journal reports that "Speaking forcefully and looking jury members straight in the eyes as he testified yesterday in federal court in Manhattan about his own role in a $2.4 billion corporate fraud case, Collins said executives of Refco Inc. lied to him about financial issues underlying the loan transactions on which he worked."

I, for one, always think its better to look people straight in the eye, as opposed to looking at them askance, eyes darting nervously around the room.

Collins said he worked with the numbers his client gave him and never knew Refco was, for example, concealing debt as he assigned an associate to draft documents needed to apply for a revolving line of bank credit, reports the New York Law Journal.

"I didn't personally spend a lot of time. I delegated them," Collins said of the loan matters on which he worked for Refco. "I didn't structure them. I didn't negotiate them. I didn't talk to customers about them. They just didn't require much of my time."

I bet his billing records will forcefully demonstrate otherwise.

NB: I feel like a kid who turned 16 and just got his driver's license and has the keys to his parents blog, er, car.


Did anyone ever tell Sinatra to "clean up his act?" I have to be free to be me. How am I going to carry the torch, if I have to "clean up my act?" Have you read the comments on this blog lately?

Ok well, short notice, so give the people what they want.

NB - Tips are welcome: edmcmahon123@gmail.com

SFL Friday -- Welcome, Guest Blogger!

Well kids, my day job has decided to intrude upon the part of my practice I like best -- foolin' around with you knuckleheads.

So as I prepare for and hopefully execute flawlessly various Important Legal Stuff over the next few days, I will leave you in the steady hands of Guest Blogger, probably until around sometime Monday, when I can get back to focusing on what really matters.

I have imparted to him the advice that Frank Sinatra passed on to Shecky Greene, "don't work blue," and Guest Blogger has agreed to clean up his act and not offend anybody while I'm away.

I'll check in periodically to make sure all you smart lawyers and judges are playing nice and saying only really positive and life-affirming things about each other.

Just pretend your mom (or Judge Shepherd) is reading this blog and knows who you are.

Have fun!

Thursday, June 18, 2009

Barry Mukamal Update!

Face it, you guys can't go more than a few hours without thinking about Barry Mukamal.

I know I can't.

Sometimes it's almost like a weird kismet, I can be walking down the street or having lunch at the Bankers Club, not planning at all to think about Barry, when suddenly -- BOOM -- there he is!

True story -- one time I even thought of Barry while I was windsurfing.

What the hail is it about this guy?

Well, even the 11th Circuit has Barry on its mind, as it entered a pretty interesting order affirming The Power of Barry.

The question before the Court was whether a debtor's efforts to consolidate debt among credit cards constituted a "preferential transfer" or merely bank-to-bank transfers among creditors.

Even though there was not much at stake, Barry as trustee was not about to let that money escape:
The decisions of the Bankruptcy Court and District Court are affirmed. The
transfer of credit card funds to pay Egidi’s debt owed to MBNA now BOA, which
occurred within 90 days of the bankruptcy petition, was a preference subject to
avoidance by the trustee under 11 U.S.C. § 547(b) and were not subject to
earmarking. The trustee was entitled to judgment in his favor in the amount of the
transfer, $16,065.00.
Allow me to translate all that bankruptcy gobblygook: You Don't Mess With The Mukamal.

GrayRobinson And You Guessed It.

As I've said before, I stand ready and willing to write up a great GrayRobinson story if one of you Brickell shmarties will send me some material.

In the meantime I see Billy Shields writes up the School Board selection yesterday of GrayRobinson partner Walter Harvey to serve as General Counsel:
Miami-Dade School Board member Renier Diaz de la Portilla quit his job at GrayRobinson, clearing the way for him to cast the decisive vote today in appointing his former partner Walter Harvey as the school system’s general counsel.

Diaz de la Portilla recused himself from a vote last month to select the district’s new legal counsel, after the DBR raised questions about a possible conflict in his support for Harvey, who worked at the same law firm and served on a public board for which Diaz de la Portilla lobbied.

As a result, the board deadlocked 4-4 between Harvey and Robert Tischenkel, a former Key West city attorney, and decided to start over its selection process.

Harvey serves on the board of trustees of the Public Health Trust, the governing body for the Jackson Health System, and Diaz de la Portilla is a registered lobbyist for Jackson Health System.

Diaz de la Portilla obtained an opinion from the state Commission on Ethics on Friday saying he was within his rights to vote after ending his relationship with GrayRobinson. The commission determined the Jackson relationship was not a conflict. Diaz de la Portilla announced today he was planning to vote to reopen the selection issue and rescind the previous decision to start selection over.

In an interview, Diaz de la Portilla said his decision to leave GrayRobinson had nothing to do with the vote.

Board members Agustin Barrera, Marta Perez and Perla Tabares Hantman voiced opposition, but the most caustic comment came from a member of the public. Board member Lawrence Feldman, who had previously supported Tischenkel was absent.

“You need to get an outside committee” to make this selection, Helen B. Williams, a former teacher, said during the public hearing. “It’s obvious you don’t know how to get anybody other than a crook.”
I happen to think Walter is very qualified, but is this really the right way to select a GC for the School Board?

I happened to be listening to the School Board meeting yesterday, and you couldn't wish that job on me if you tried -- what a bunch of nudnicks, you can keep those billables if you ask me.

But there's got to be a better way than this to instill confidence and transparency into the selection process.

Wednesday, June 17, 2009

3d DCA Watch -- My Buns Have No Seeds Edition

Hi kids, so I officially received my seventeen-thousandth email about the "sexting" controversy over at the Miami office of White & Case.

From Carvalho to the former Mayor of Detroit, how many times before canoodlers learn that your hand-held device is going to get you in trouble?

BTW, if you are still using that dinosaur blackberry and have not yet switched to the Palm Pre, you canoodlers need to upgrade your dating game hardware pronto.

Well as always I'm excited because today is that glorious, sanctified day of the week, when the Lord Gods and Goddesses of the Concrete Bunker By The Highway emit their weekly written utterances, that day of all days when the resplendently robed ones swill coffee and exchange pleasantries with nervous lawyers by that ancient coffee machine in the ultra-hip 70s-era professional office/ante room/library waiting space.

Does that place remind anyone else of the reception area from the old Bob Newhart Show?

Anyways, it's onward and forward to our patented 3d DCA Watch:

In re: Citrus Canker:

Get ready to be floored people, read and weep as you savor the full essence of this opinion:



WELLS and LAGOA, JJ., concur.
Pretty impressive, huh?

Our work here is done.

But wait -- where's Judge Rothenberg?

Oh oh, dissent time:
Because the trial court’s order is in direct conflict with this Court’s 2006 mandate; section 73.071, Florida Statutes (2008), regarding eminent domain proceedings; Florida Rule of Civil Procedure 1.220(d), regarding class action certification; and relevant case law, I would reverse the order staying the proceedings and remand with directions to proceed with class certification forthwith.
Now hold on. Bobby Gilbert's already sunk millions into this case, and the budget-stricken State of Florida has paid hundreds of thousands to Adorno lawyers to litigate this case to death.

Why have a pointless class cert hearing now, pray tell:
While I believe rule 1.220 does allow for some discretion in the matter, I agree with the Department that the trial court abused its discretion because the certification (or non-certification) of the class in the Miami-Dade County citrus canker litigation distinctly differs from the class certification process in Broward County, the resolution of the Broward County case will not have any bearing on whether class counsel can meet the class certification requirements in the Miami-Dade County case, there has already been a protracted delay, and the stay issued is indefinite and excessive.
"Distinctly differs"? Really?

What exactly does Judge Rothenberg think is so "distinctly different":
The class certification process not only tests the basic requirements of commonality and numerosity, it tests the adequacy of the class representatives and class counsel, which differ from, and are not dependent on, the rulings made by the Broward circuit court, the Fourth District Court of Appeal, or ultimately the Florida Supreme Court.
Ok, got it --
"Look...me and the McDonald's people got this little misunderstanding. See, they're McDonald's...I'm McDowell's. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds. "
Of course the homeowner needs be an adequate representative, I get that. But the threshold is not high and should not be very difficult to establish.

And class counsel is the same, no? Is that really a sufficient reason to hold an evidentiary hearing?

Does it really make sense to take up Adorno's suggestion and have the state pay them more money to oppose class cert in Miami-Dade based on these flimsy grounds, where all the other issues are identical, even though the issues may become moot, may require a different result based on appellate rulings, may be reversed entirely, or may need to be retried from scratch?

Score one for common sense, folks.

DBR Takes A Look At Caperton Disqualification Issues

This is an interesting look by Jordana Mishory on the impact of the recent Supreme Court ruling on judicial disqualification and how it may play out in Florida judicial elections:
Campaign watchers say the state’s $500 cap on judicial campaign contributions means it’s next to impossible to buy the type of influence alleged in the U.S. Supreme Court case, which examined the impact of $3 million coming from a single source.
Further, my buddy Chuck Lichtman (who did great work during the Presidential election) says the same thing:
“When you consider that an average Broward judge race costs anywhere between $75,000 and $150,000, and the state limits [donor] check amounts at $500 per judge, there’s no real applicability for the real world,” said Chuck Lichtman, a Berger Singerman partner and the Florida Democratic Party’s lead counsel in the 2008 election.
I think the $500 cap misses the point of the ruling, to some degree. In West Virginia there was a statutory cap of $1000, so in that sense our states are similar.

But what Don Blankenship did, as the article notes, is bypass the statutory contribution cap by forming his own 527 which poured $2.5 million in direct advertising to criticize the opponent of the candidate he was supporting.

What would prevent the same thing from happening in Florida?

Chuck also thinks it would be too random in terms of influencing our judges:
Lichtman said donors are unable to predict which judge could hear a case based on random case assignments.

“In Florida, there’s a terrific set of rules in place that provides for protection,” Lichtman said. “I don’t see it being a big deal in Florida.”
That's true, but remember Blankenship was also taking a shot in that there are five members of the West Virginia Supreme Court, so it was not a certainty that Blankenship's choice would make the three-judge panel selected for his case.

Still, given that our appellate courts are appointed rather than elected, I do think the possibilities of such massive infusion of cash from a single source to influence a judicial election are unlikely.

We'll continue to do it the old-fashioned way -- hiring power brokers and bundlers to help amass large campaign chests.

That system works great, right?

Tuesday, June 16, 2009

MDL Panel Creates Giant Sucking Sound.

Yes kids, those civil litigators all in quiet mourning today are lamenting the huge loss of business due to the MDL Panel's surprise decision to export dozens of Chinese Drywall cases pending in the SD FL to -- of all places -- Louisiana:
Coral Gables attorney Ervin Gonzalez, who has filed about 20 drywall cases, said the consolidated litigation will allow plaintiff attorneys to share information and avoid costly duplicative court costs.

“I think it’s good we are going to start moving on these cases,” the Colson Hicks Eidson partner said.
Plaintiffs' counsel are less dramatically impacted by this decision, as their ability to organize cases is not necessarily dependent on the location of the litigation, although that sometimes does play a role.

But for defense counsel hired by large firms as local counsel or in the Miami offices of national firms involved in the litigation and hoping to get a big chunk of this work, the MDL Panel decision may have a momentous impact -- potentially millions of dollars in work yanked from our local legal economy and exported to lawyers in Louisiana, who will likely be working with the DC or NY-based offices of national firms.

Oh well, at least it's New Orleans.

(MDL junkies, take heart -- the Panel did send two pieces of litigation our way recently, the Kaplan qui tam cases to "seasoned jurist" Judge Seitz, and the checking overdraft cases to the heavily seasoned Judge King).

Glenn Garvin, Fake US Attorney

Our friend Glenn continues to pretend he's a lawyer, except now he's a top-notch US Attorney taking pot shots at the prosecutorial record of Patrick Fitzgerald, one of the more celebrated US attorneys in the country.

There's so much straw men hackery to unpack in Glenn's op-ed that it could take literally days and valuable billable hours, but let's just examine the main claim -- that Peter Lance wrote a good book that exposes Patrick Fitzgerald as a bumbling, inept and dishonest AUSA.

In other words, Glenn wrote a press release!

Glenn even kindly timed it so his column would coincidentally run the same day (today) that Lance holds a big press conference in DC to drum up publicity for his book.

Nice work Glenn!

From what I can tell, Glenn basically cribbed his op-ed almost entirely from Peter Lance's own voluminous press releases, available at his website. (The oddball stuff about the Plame prosecution is of course Glenn's own straw-man invention).

If you actually read the letters from Fitzgerald (which are extremely well-written and highly persuasive), Fitzgerald makes a compelling case that Lance made or makes a number of dubious and/or possibly defamatory claims.

I'm sure due solely to word constraints, Glenn fails to mention that some of Lance's key claims were debunked in a recent book by former AUSA and NRO legal contributor Andy McCarthy, who appeared on The O'Reilly Factor to denounce the book as follows:
"This (book) is scurrilously presented. Everything he says we were hiding about Ali Mohamed was presented in open court. It is represented in the book in a widely disingenuous way, relying on convicted terrorists and convicted murderers as sources."
Glenn also fails to mention that the book was first published under the now defunct "Regan Books" imprint, in a lame effort to make the book seem more respectable.

Regan Books, you may recall, published important literary works such as "O.J. Simpson: If I Did It," as well as highly regarded tomes by Janice Dickinson, Jenna Jameson, Jose Conseco, and of course Sean Hannity.

Didn't one of those win the Booker Prize?

Glenn also neglects to inform his readers that National Geographic apparently dissociated themselves from Lance due to his insistence on making claims that could not be "independently confirmed."

You can see see other thoughtful, detailed criticism of the book not anywhere in Glenn's column, but instead here, here and here.

Monday, June 15, 2009

"Sorry, No Person Found."

I decided to do a little Pacer-surfing with some of the muckety-mucks who make up the 2009 SuperLawyers of Florida.

I didn't get very far, however.

First I looked at the cases being handled in the SD FL by Weil Gotshal's Ed Soto.

Here's what the trusty CM/ECF spit out:

(tumbleweed slowly blows across computer screen.....)

Hmm, Ed either has a thriving national practice or currently hosts a really funny show on Comedy Central.

Comment Contest!

Has anyone else noticed that the DBR is now publishing online comments to their articles in the dead-tree edition?

For example, in today's paper under the "Comments From Web" section there is a stock photo of Judge Zloch next to some fairly lame comments from "Catholic Lawyer" who notes that "Sure, Judge Zloch may be a pain, but to go after him for being a Catholic?"

He also includes this bon mot: "Oh ya...."

Further down the page there is this sterling observation from "Chas" -- "Seems these guys got hosed bad. Being in Florida probably a lot of older people who needed the money go hosed. Sad."

Come on people, we can do better!

In fact, I call on all of you to flood the DBR with comments on their stories, and let's try to get some good/funny/inane/borderline scandalous ones published.

Winner gets a brisket sandwich at Roasters & Toasters, served by my buddy John Pacenti.

(Ok, maybe not the last part.)

Are You A SuperLawyer?

Hi kids, what a glorious weekend, huh?

This morning I decided to bike into work and took the Venetian Causeway across the pond -- a great ride.

Along the way I saw this really helpful yet totally abandoned Transit Service Center, which according to the posted sign has hours from 7:30 am to 4:00 pm.

Hmm, either that sign has been wrong forever or somehow I wondered onto the set of The Omega Man.

Way to go, Miami!

Anyways, so yes I was happy to see me listed along with some other good SuperLawyers in the Herald supplement, but why was handsome Chris Searcy on the cover? I didn't see that option on my payment form!

Shhh, don't tell Chris but I read in the Times this morning that Obama may be handing away consumer rights in order to get his health plan passed.

WTF? Why does he have to be such a uniter all the time?

Chris, get off the cover and take care of this please.

Friday, June 12, 2009

SFL Friday -- "You Got To Shake It Baby, You Got To Shake It Baby, You Got To Shake It"

Ok, let's get the law stuff out of the way real quick.

My friend Guest Blogger and now even the indomitable Billy Shields points out there are some cha-cha-cha-changes in the family division, with Judge Sandy Karlan now Chief Administrative Judge, and Judge Scott Bernstein the new Associate Administrative Judge.

Also, Judge Carol Kelly (hi there Judge!!) is the new AJ of the domestic violence division.

These are some of the toughest places for our judges to be, where overworked, underfunded public servants do their best to make justice work amid shrinking budgets and rising caseloads.

Thank you all for your service.

Hey all you hipster Mac users, who's laughing now?

Related -- I hate Justin Long.

Well it looks like it might stop raining someday, so what do you all have planned for this weekend?

(Greenberg Girl, don't tell me I already know.)

As usual, I have a lot on my plate. Of course I plan to eat my fruits and veggies, place some vodka to my lips (purely in the interests of science), and -- like I always do -- contemplate the changing nature of feminine beauty.

Personally, I find beauty everywhere and in all shapes and forms. I may even find some Saturday at Mizner Park, when those twisted, sardonic, aging misanthropes take the stage and shake it, Babylon Sisters, shake it.

"So fine so young, tell me I'm the only one...."

And Sunday I expect to windsurf my way over to South Beach, where I plan to clean things up, one lonely butt at a time.

See, I told you I was busy.

Have a great weekend everybody!

Immune System of Bankruptcy Lawyer Further Imperiled by 11th Circuit Affirmance.

It's not easy being "extremely Floridian."

I like the lawyers at GrayRobinson, and I think they have a smart business model.

So I'm ready to write something positive, if one of you shmarties over on Brickell would send me some good news.

Instead, I have to report on this 11th Circuit opinion issued yesterday, which affirms a Middle District affirmance of a bankruptcy court sanctions order against attorney Peter Ginsberg of Peter R. Ginsberg P.C. (now at Crowell & Moring), and GrayRobinson lawyers Scott Spradley (who doesn't appear to work there anymore) and Maureen Vitucci, who served as local counsel for Ginsberg and also represented several other parties to the bankruptcy.

First off, it's just wrong that any order has to go on for eight pages before the opinion actually starts.

But once it gets going it's an interesting read. Apparently the sanctions order grew out of motion to recuse that the court determined was principally drafted by Ginsberg. In the sanctions order, the bankruptcy judge imposed monetary sanctions of $371k and barred Ginsberg from practicing in the Middle District bankruptcy court for five years.

GrayRobinson then settled their portion of the sanctions for $300k, which the bankruptcy judge approved.

I would read the whole thing, but I was particularly struck by the 11th Circuit's discussion of the tone of Ginsberg's filing and courtroom demeanor, which starts on page 44.

Here's Judge Fay on how Ginsberg treated the bankruptcy judge he had sought to recuse:
Further, Ginsberg was extremely difficult to deal with and disrespectful to
the court. He refused to answer the court's questions, treated the court as an adversary and continually made inflammatory statements. For example, Ginsberg
exaggerated the implications of Judge Briskman’s actions, alleging that his
conduct “relates directly to the judicial processes, namely the integrity of trial
transcripts, and a party’s due process rights and liberty.” (Recusal Mot. at 19.)

Ginsberg opened the Recusal Hearing by claiming: "Your honor has compromised my health, your Honor has compromised my immune system." (Recusal Tr. Vol. I
at 5.) Ginsberg also used accusatory, unsupported language in the three petitions
for writ of mandamus; asserted that Judge Briskman faced “potential career ending
punishment”; and accused him of trying to surreptitiously “brush the matter under
the carpet” so he could “retain authority over these very important issues of
judicial and professional conduct." (Response Br. at 16.)

Ginsberg also purposefully pursued recusal very publicly. After learning of
Hudson's Complaint, Ginsberg did not first request a private hearing with Judge
Briskman and all counsel in these cases to address his concerns, nor did he file the
Recusal Motion under seal (ignoring the preference for confidentiality inherent in
the Judicial Council Rules discussed below). Instead, the first time Ginsberg
raised the Complaint was in a 31-page accusatory motion which used the term
"investigation" twelve times and referenced adverse rulings fifty-four times.
Ginsberg also immediately brought the Recusal Motion to the attention of the
district court. He filed three petitions for a writ of mandamus with the district
court while the Recusal Motion was still pending.

In our view, Ginsberg’s dogged pursuit of a frivolous claim indicates bad
"Your Honor compromised my immune system"??

Seriously? That's really your opening, Peter?

Take some Naturebee and buck up, soldier.
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Thursday, June 11, 2009

Don't Let It Bring You Down.

Well, that was some spectacular event at the Epic in honor of Chief Justice Quince tonight. I know I saw many of you there, including my friend Randy Kroner, because it was packed. And what a great speech she gave about helping those at-risk kids who emerge from foster homes and need caring, loving mentors to help shepard them into young adulthood.

Also, Melanie Damian looked and sounded awesome.

This is all good stuff.

Plus, tonight I wound up watching the great American Masters series episode on Neil Young from a few nights back, which was amazing.

Young plebes, please learn what it means to commit to and dedicate yourselves to something bigger, better, and more meaningful than anything you could hope to forge by just billing a bunch of hours for The Man.

Neil was there, folks, he felt it, lived it, and recorded about it.

Try to do the same, peoples.

Relive The Good Old Days At FAWL Judicial Reception

Remember the good old days of the Bush/Gore recount, when ill-informed, disingenuous hacks loudly denounced our own little Florida Supreme Court as a hotbed of liberal judicial activism?

Oh, what fun times we had back then, mispronouncing the names of Justices, confusing live judges with dead ones, all on a huge national stage where only the nation's future was at stake!

Well I for one plan to relive those happier times tonight at the FAWL cocktail reception honoring Chief Justice Quince.

Look for me cracking wise and acting foolish, camera-ready and dry Gin Gibson-equipped, summoning the energy to swap war stories head-on with my buddy Lew Freeman.

Wish me luck!

Let's Talk Tom Lauria!

The WSJ gives the love to Miami White & Case bankruptcy attorney Tom Lauria, who fought in vain to derail the Chrysler-Fiat sale:

Judge D. Michael Lynn of the Northern District of Texas, who presided over the Mirant case, says Mr. Lauria "is, if anything, overly tenacious." He sometimes focuses "on the justice of his client's position to the exclusion of the merit of the opposition's arguments," the judge adds.

It is a widely shared view among lawyers who have worked with Mr. Lauria or battled against him. "I don't know many lawyers in the bankruptcy practice who take the idea of zealous representation of their client as seriously as he does," says Richard Chesley, a Chicago bankruptcy lawyer who has worked with Mr. Lauria on a couple of cases.

According to the article, Tom received $900 an hour for his work in the Mirant bankruptcy.

And, according to the DBR, the Indiana pension funds have paid White & Case over $2 million for Tom's efforts, which proved unsuccessful as the Supreme Court ultimately cleared the sale.

Now we know White & Case is struggling, and was profiled in the NYT on Sunday as a poster case for the woes of BigLaw. Indeed, they recently fired over 200 lawyers, nearly 1 in 10, including partners.

So, bankruptcy lawyers, was the $2+ million well-spent?

Wednesday, June 10, 2009

3d DCA Watch -- Apodictic All Over Again!

Hi kids! The sun is shining, I have been windsurfing all morning, and the forecast looks good for a return to the waves later this afternoon.

Hey, it's summer, right?

So let's jump right in and see what the mostly wise white men think, you know, the resplendently robed swillers of coffee-on-high, who dispense mighty mighty justice in carefully controlled, episodic bursts from a purpose-built, retractable, heavily fortified concrete bunker, yes it's a completely apodictic edition of 3d DCA Watch:

Jetbroadband v. Mastec:

Isn't it great when you get a chance to cite Venetian Salami?

It almost makes conducting the dreary, hopelessly-addled FL long-arm jurisdictional analysis worthwhile.

I said "almost."

Here the 3d "makes law" by concluding that two corporations can confer exclusive jurisdiction on our own little circuit court simply by agreeing to it. Who'd a thunk?

Well, Ed Mullins actually, who is cited in the opinion. Congrats Ed!

Meanwhile, have fun standing in line waiting for all those foreclosure cases to get adjudicated -- your case will be set for trial in 2017, assuming the courthouse is not completely out of funds by then.

Witt v. La Gorce Country Club:

Does the economic loss rule apply to professional negligence claims?

Who the hail knows -- what another completely messed-up area of FL jurisprudence.

You know, I remember a time back in the early 90s when the economic loss rule was nearly as popular as "paninis" are today.

Back then, you couldn't shake a stick at a piece of commercial litigation without having to deal with some young associate saying "but what about the economic loss rule? Do you think the economic loss rule applies?? Huh, do ya?? Do ya think??"

And then you'd pretend to have to know something about it and more or less was required by law and your senior partner to raise it in pretty much every brief you filed.

Good thing nobody likes it anymore.

In fact, here the 3d makes some more "law" by extending the analysis of the FL Supremes in Moransais to professional negligence claims even where there is a professional services contract with an express limitation of liability:
By allowing a professional negligence claim against an individual on common law and statutory grounds, and finding that the doctrine designed to prevent “parties to a contract from circumventing the allocation of losses set forth in the contract” does not preclude such a claim, the Florida Supreme Court implicitly acknowledged that claims of professional negligence operate outside of the contract. Because a professional negligence claim exists and operates outside of a professional services contract, it would be inapposite to limit such a remedy to the confines of the very document outside of which it was intended to operate.

A cause of action in negligence against an individual professional exists irrespective, and essentially, independent of a professional services agreement, as evidenced by section 492.111(4) and Moransais, and, therefore, we find that the limitation of liability provision was, as a matter of law, invalid and unenforceable as to Witt.
Are you convinced?

Laurore v. Miami Automotive Retail:

Ever have a liar for a client? Wait, don't answer that.

How about one that Judge Gordon described as a "con artist, he is a liar. . . . It’s not right and he is using this Court to do it and I won’t let him.”

Umm, check please!

But Judge Wells is all full of that dreaded empathy and so just affirms the dismissal sanction as to a portion of the plaintiff's damages claims.

But not Judge Shepherd.

Oh no, there's a lot of...well, badness in the world today. I see it in court every day. I've sentenced boys younger than you to the gas chamber. I didn't want to do it- I felt I owed it to them.

Oops, had a Caddyshack moment there.

Anyways, Judge Shepherd thinks this guy should get the business, and I mean the whole business:
It is apodictic, however, that on appeal from an order dismissing an action on the basis of fraud on the court, we cannot simply substitute our judgment for that of the trial court. Instead, as the Florida Supreme Court has instructed us, “to justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); Baker v. Myers Tractor Servs., Inc., 765 So. 2d 149, 150 (Fla. 1st DCA 2000); Tramel v. Bass, 672 So. 2d 78, 83 (Fla. 1st DCA 1996). I cannot say the trial court abused its discretion in dismissing this case for fraud.
Well, let me revise and extend my remarks -- he just relies on the standard of review.

But is it a clear error standard, or an abuse of discretion standard?

Who knows -- it's all apodictic anyways.