Wednesday, September 30, 2009

3d DCA Watch -- Judge Schwartz Explains The "Ground" of Benevolence And Compassion.

Hi kids!

I just started R. Crumb's newly published book -- four years in the making -- which is an illustrated word-for-word graphic retelling of the entire Book of Genesis.

Here is Amazon's blurb on it:
This eagerly awaited graphic work retells the first book of the Bible in a profoundly honest way. Peeling away the theological and scholarly interpretations that have often obscured its most dramatic stories, R. Crumb—using the actual text word for word—has imagined the Bible as it really was. Now, readers of every persuasion—Crumb fans, comic book lovers, history buffs, and believers—can gain astonishing new insights from these harrowing, visceral, and even juicy stories. Crumb’s The Book of Genesis reintroduces readers to Adam and Eve’s Eden, Noah’s Ark, Sodom and Gomorrah, and the Pharaoh’s Egypt. Using clues from the text, Crumb fleshes out the parade of biblical originals: from the sensitive dreamer Joseph to the crafty Jacob, to the still-fetching Sarah, to God Himself. The result, four years in the making, is a tapestry of extraordinary detail, the finest work of Crumb’s legendary career.
So far I have to agree with Amazon -- it's as good as they say -- with lots and lots of Biblical canoodling and plenty of God's wrath.

The reason I mention it now is because Judge Schwartz drops some wrath of his own on Judge Valerie Manno Schurr.

Her crime? Showing unwarranted judicial compassion by routinely granting continuances to homeowners facing foreclosure sales.

Here's what Judge Schurr said that got her in trouble:
I was trying to make everybody happy.
. . . .
We have so many foreclosures here and I give
continuances on these sales. I just do.
. . . .
Unless it is so abundantly clear to me that it is just an
abuse of the process, I give extensions on these because I
don’t want anybody to lose their house. If there is any
chance that he can do this deal, get the money and try to
save this home, you know, people are having a hard time
now. They are having a difficult time. Everybody
knows it. Businesses are failing. People are losing
money in the stock market. You know, unemployment is
high. It’s just everybody knows that we are in a bad time
right now and I hate to see anybody lose their home.

Ok, I agree this could have been better worded (or not expressed on the record) and perhaps a more suitable basis can be found for the discretionary extension of a foreclosure sale under certain circumstances.

And guess what -- Judge Schwartz didn't like this speech either:
Although granting continuances and postponements are, generally speaking, within the discretion of the trial court, the “ground” of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange a sale of the property during the extended period until the sale) does not constitute a lawful, cognizable basis for granting relief to one side to the detriment of the other, and thus cannot support the order below: no judicial action of any kind can rest on such a foundation.
For good measure the Judge cites Canakaris, a case that pleases me almost as much as Venetian Salami.

Indeed, that Justice Cardozo language never grows old:
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process 141 (1921).
Maybe it's all that Book of Genesis imagery swirling around in my head, but I actually agree with Judge Schwartz here -- there has to be a better articulation of the grounds for exercising discretion than simply "people are hurting."

Oh boy.

Tuesday, September 29, 2009

Settlements: Sometimes A Good Thing.

The always intrepid Julie Kay gets to the bottom of the $4.9 million malpractice verdict against Becker & Poliakoff.

Apparently, Becker & Poliakoff stepped in to pursue malpractice claims against Ruden McClosky:
The roots of the discrimination case began when Young and 55 other plaintiffs sued BellSouth, alleging failure to promote blacks to management.

Their attorneys at Ruden McClosky settled the case for $1.6 million with BellSouth in 1997, according to an exhibit accompanying the malpractice lawsuit filed against Becker & Poliakoff on behalf of Young. Plaintiffs split $300,000, or about $5,000 each. The plaintiffs later learned the settlement agreement called for Ruden to receive $120,000 a year for four years, enter a consulting agreement with BellSouth and agree to file no employment cases against the company for a year.

Angered by that outcome, the plaintiffs hired Becker & Poliakoff to sue Ruden for malpractice and breach of fiduciary duty.

Ruden settled for $8 million in 2002, and the proceeds were distributed among 54 plaintiffs, according to memos that became part of the court record in Young’s malpractice case against Becker & Poliakoff. Carl Schuster, managing partner of Ruden McClosky, declined comment, citing a confidentiality agreement with all parties.

“We have been sworn to secrecy,” he said. “It’s bad enough that Becker & Poliakoff got hit with a $4.9 million judgment. We have a settlement agreement, and I could be sued for violating it by saying anything.”
So Becker's firm got involved in order to sue Ruden for malpractice, which settled for big money, and then itself got sued for malpractice.

A few things interested me about the story.

One -- B&P's alleged net worth:
Additionally, Palm Beach Gardens forensic economist Bernard Pettingil Jr. testified about Young’s projected wage losses at BellSouth. He estimated Becker & Poliakoff’s revenue for the last five years totaled $49 million per year. Zobel asked for Becker & Poliakoff’s total net worth, which the expert witness estimated to be $10 million.
They're only worth about 10 million, after taking in $49 million per year for the last five years?

Also, consider the settlement negotiations:
In mediation, Becker & Poliakoff offered to settle for $25,000, but Young walked out, Zobel said. A week later, the offer was raised to $100,000. In trial, it rose to $500,000. By closing arguments, Becker & Poliakoff offered $900,000, and Young turned them down, Zobel said in an interview.

Jurors awarded Young $4.9 million, including $4.5 million in punitive damages and $394,000 in lost wages on Sept. 16. The punitive damages are especially harsh for Becker & Poliakoff as malpractice insurance generally does not cover these types of damages.
25k at mediation?

I know it's hard to value punis for settlement purposes, but these are very experienced lawyers and they didn't evaluate and quantify this risk? Or if they did they couldn't bring themselves to offer more than $100k before trial?

I also like Alan's explanation of what went wrong:
“Apparently, the jury did not believe me, the supervising lawyer who no longer works for us and came from Mississippi to testify and the written documents that supported everything we said,” he said. “Instead, they believed a rogue lawyer who had been disbarred.”
Hmm, what exactly do you think that might mean?

Tuesday Roundup -- This One's For George.

Ok, I'm going to try hard this morning to provide nothing but real serious legal news, so everyone can bill 1.8 hours for reviewing this crap.

Let's start with Chinese Drywall.

Everyone knows it's no fun to sue Chinese defendants.

Still, I was a bit surprised to see plaintiffs' lawyers talking about seizing ships that transported the drywall:

Herman said plaintiffs' lawyers were up to the challenge. "I think we can bust the dam in this case," he said.

He said making that happen could involve attempts to obtain damage payments by seizing vessels that brought the drywall to the United States if they return to U.S. ports and even going after Wall Street investment banks with a share of ownership in the Chinese companies.

"We've got financial institutions in the United States that have substantial investments in these companies that caused these problems," Herman said. He couldn't say which U.S. financial institutions could be sued for damages.

Miller said lawyers are considering asking courts to seize vessels that delivered the drywall.

"It's an interesting concept and if it can work to get the attention of these other Chinese companies, that's what needs to be done," he said. "Getting the missing parties to the table" was paramount, he said.

But seizing vessels — known as an "in rem" action, which often involves filing a lien against a vessel — and going after shareholders would hardly be easy, said Mark Ross, a Lafayette, La., lawyer who specializes in maritime law and civil litigation.

"My gut reaction is that that could be a bit of a stretch. In rem could be seen as a severe action, seizing a vessel, tying it up for a day," Ross said.

"How do you go about identifying what vessels to seize?" Ross said. "How do you seize a vessel for merely transporting cargo, which they might have been required to take by law."

A ship owner could sue if the seizure were deemed too aggressive, Ross said.

As for going after investors, Ross said that too was far-fetched. "Smart money says that's not going to work. A shareholder? Probably not. I don't know if that exposes them to liability."

It'd be one thing if the ships were owned by one of the Chinese defendants.

But seizure because in the past a ship owned by another company transported bad drywall? That'd be like seizing a UPS truck because it once transported a defective product.

Moving on, did you know that the Supreme Court has severely cut back the number of cases it accepts?

As usual, the law clerks are to blame:

Another factor contributing to the shrinking docket may be the “cert. pool,” the arrangement in which many of the justices share their law clerks to assess the thousands of petitions from which the court culls the cases it will hear. A single clerk writes a “pool memo” evaluating the case, and the memo is distributed to the participating justices.

The number of justices in the pool grew to eight from six from 1989 to 1991, and that may have driven down the number of petitions granted, according to Kenneth W. Starr, a former appeals court judge, solicitor general and independent counsel in the Whitewater investigation. (Seven justices are in the pool now. The exceptions are Justices John Paul Stevens and Samuel A. Alito Jr.)

“The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” Mr. Starr wrote in The Minnesota Law Review in 2006.
I don't know, given some of the recent opinions, this might be a good thing.

In 11th Circuit news, Judge Middlebrooks gets reversed by the 11th because he dismissed a complaint by a plaintiff proceeding in forma pauperis after the US Marshall failed to timely serve the defendant:
We agree with the well-reasoned decisions of our sister circuits. Relying on Fowler, we hold that the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes “good cause” for the plaintiff’s failure to effect timely service within the meaning of Rule 4(m). Here, the district court allowed Rance to proceed in forma pauperis and, in accordance with § 1915, it specifically instructed the United States Marshal to make service. Our precedent allowed Rance to rely on the Marshal to make service. See id. For reasons unknown to us, the United States Marshal did not do so. Nothing in the record indicates that Rance shares in the Marshal’s fault for failure to effectuate service.

Therefore, the district court abused its discretion by dismissing Rance’s complaint without prejudice under Federal Rule of Civil Procedure 4(m) because the district court had directed the United States Marshal to serve the complaint, and the United States Marshal failed to do so through no fault of Rance.
Finally, somebody show this to George L. Metcalfe:
Gay or straight, the sexual orientation of adoptive parents does not have an impact on the emotional development of their children, according to a new study.

But researchers said that if parents were satisfied with the adoption process, had a stable income and functioned well as a family the risk of emotional problems in children were reduced.

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement.

"We did find, however, that age and pre-adoptive sexual abuse were," she added.

Averett, Blace Nalavany, also of East Carolina University, and Scott Ryan, dean of the University of Texas School of Social Work, questioned nearly 1,400 couples in the United States, including 155 gay and lesbian parents.

They used information from Florida's public child welfare system and data from gay and lesbian couples throughout the U.S. for the study.

Good lord!

Empirical data and even worse -- science? According to possibly David Broder and definitely Kirk Cameron, wasn't science first invented by the Nazis?


As I've already explained, there are only two legitimate sources of authority -- my gut, and what God tells me.

(On occasion, like my friend George, I might consider a truly horrific anecdote as well.)

Monday, September 28, 2009

Glenn Garvin Definitely Does Not Want To Get Ourselves Back to the Garden.

As Eye on Miami points out, we happen to be fortunate to live between two beautiful but fragile and endangered national parks -- yet this Glenn Garvin rant leads the Herald's coverage of the stunning new documentary series on the national parks system by Ken Burns, which debuted on PBS last night:

But actually it's parks that are unnatural. They're an attempt to impose stasis on nature, to halt its evolutionary change. Conservationist zealots like Burns are the ones who deny a human relationship with nature, because they treat man as the lone creature with no right to modify his environment.

Ok, I see that in Glenn's world, "modify" and "destroy forever" are in fact synonymous.

But wait -- there is seriously no mention in Glenn's column of the Everglades or Biscayne National Park, and the fact we are the only city in the country to border not one but two great national park systems?

Well, there is this:

As for The Story of Florida's State Parks, a three-part companion series produced by WPBT that starts Monday and is full of drippy poetry about God asking trees what time it is, the best that can be said is that it's 10 ½ hours shorter than National Parks.

Florida's beautiful spring systems blah blah blah.

And Black Elk, what a drip -- drop him in Walden Pond by way of Cross Creek, and take John Muir and Teddy Roosevelt for a dip too.

Keep fighting those 60s culture wars, Glenn!

Alan Kluger Opens Second Front in Chow War

Hmm, I'm no amateur WWII scholar (ok, I am), but last I checked it's not that good an idea to open up a second front while merry olde England is still alive and somehow surviving -- you know, blood, toil, tears and sweat and all that.

Yet Alan Kluger's war against the allegedly fake Mr. Chow's continues (our prior coverage is here, here, and here) with a second front launched in LA by celebrity lawyer Bert Fields:

As with the Miami lawsuit, Michael Chow is seeking more than $10 million in damages, according to the Los Angeles filing.

"My friends and I have enjoyed dining at Mr. Chow’s for many years," says Fields, who has represented the likes of Tom Cruise and Joel Silver. "Many of us entertain there .... So I’m personally affronted when this former food chopper and his cynical backers try to make money by imitating everything Mr. Chow does."

Morfogen had called the Miami lawsuit meritless. A motion to dismiss was filed in Miami federal court in July.

Taking a look at the suit pending before Judge Hoeveler, it looks like the motion to dismiss is fully briefed and has been pending since August 26th, and there is a motion to strike certain exhibits from the motion to dismiss that is also pending as of September 8th.

Good luck getting to Moscow before the winter sets in!

Sunday, September 27, 2009

Scott Rothstein Thinks Your Goatee Lacks 'Tude!

Would you want to work at a firm where the boss personally evaluates your facial hair?

You would if you work at Rothstein Rosenfeldt Adler:
He will only let his underlings grow facial hair, for example, if they have the right attitude. ``I had one young attorney who wanted to grow a goatee,'' Rothstein says. ``I allowed him to try. But it didn't work. It was patchy and scruffy. Another guy grew one that looked good. But he seemed embarrassed by it. You have to be a beard or goatee kind of guy, or the jury or the client will just think you didn't shave or you're trying to prove something.''
Also, you can thank some unnamed retired federal judge for the fact that Scott feels compelled to "politely terrorize" the lawyers at his firm -- sartorially, of course.

I guess if you're wearing a $5k Tom James suit you've earned that right.

Friday, September 25, 2009

SFL Friday -- Have An Awesomest Day of Atonement!

Well kids I plan to scoot out of here shortly, to begin my long solemn weekend regimen of prayer, reflection, and expanding my abdomen, so let's take a quick look at what is happening around town.

I see Bill Amlong has a good case against fancy Fort Lauderdale private school St. Marks:
The Rev. William "Dub" Brooks, 58, headmaster of St. Mark's Episcopal School, has been accused by the dismissed teachers of age discrimination. They are demanding their jobs back.

The U.S. Equal Employment Opportunity Commission issued letters this summer, saying it had determined Brooks had a list of about 25 positions he planned to eliminate, and had repeatedly expressed "his intentions to replace 'all the older women with young women with big boobs.' "
Interesting educational policy you have there, Reverend.

David Broder, fresh from visiting a midwestern church potluck dinner where the chicken was succulent, the mashed potatoes mounded high, and the tea filled with sweet sweet bipartisan love, is worried that Obama thinks too much:
For him, governing means not just addressing discrete challenges as they arise, but formulating comprehensive policies aimed at giving large social systems -- and indeed society itself -- more rational and coherent forms and functions. In this view, the long-term, systemic problems of healthcare, education and the environment cannot be solved in small pieces. They must be taken on in whole.'
That's bad, right?

I mean, everyone knows real men make decisions based on two criteria only -- by trusting their gut, and by asking WWJD.

Also, note to Herald -- everyone already laughed about this column yesterday.

Finally, in honor of Milt Ferrell (and Warren Zevon), please take a moment to remember tomorrow is Mesothelioma Awareness Day.

Have a great weekend everybody!

Proposed Clause Referencing Bob Josefsberg Removed From Non-Prosecution Agreement.

I'll leave it to the defense lawyers to comment on the overall approach taken here but this proposed language on settling several related civil suits sure seems unusual:

On its first draft in September 2007, it required that Epstein pay an attorney - tapped by the U.S. Attorney's Office and approved by Epstein - to represent some of the victims in civil suits they had filed against Epstein. That attorney is prominent Miami lawyer Bob Josefsberg.

Former prosecutor Johnson said he has never seen a provision like that before.

But an addendum to the agreement signed the following month struck Epstein's duty to pay Josefsberg if he and the victims did not accept a settlement and instead pursued litigation.

The agreement, signed by Assistant U.S. Attorney Maria Villafana, does not expressly state whether any victims were contacted or consulted before the deal was made.

Attorney Brad Edwards of Fort Lauderdale, who represents three of the young women, believes that none of the between 30 and 40 woman identified as victims in the federal investigation were told of the deal. Edwards said his clients were still receiving letters in the mail months afterwards saying the U.S. Attorney's Office assuring them Epstein would be prosecuted.

"Never consulting the victims is probably the most outrageous aspect of it..." Edwards said. "It taught them that someone with money can buy his way out of anything. It's outrageous and embarrassing for United States Attorney's Office and the State Attorneys Office."

Epstein now faces many civil lawsuits filed by the women, who are represented by a variety attorneys. In many, the facts alleged are the same: that Epstein had a predilection for teenage girls, identified poor, vulnerable ones and lured them to his home via other young women. The teens describe ascending a staircase lined with nude photographs of young girls and to the spa room where Epstein would appear in a small towel.

Former Circuit Judge Bill Berger, who represents one of the victims, and The Palm Beach Post sought the unsealing of the agreement. Berger refers to it as a "sweetheart deal."

Why would there be a proposed provision requiring payment only to one attorney who represents only some of the victims? Has anyone ever heard of this before?

BTW, Epstein you are one sick dude.

Thursday, September 24, 2009

Judge Frank M. Hull Has A New Look?

Lots of coverage of the oral argument before the 11th in Ben Kuehne's case, including this nice piece by John Pacenti, which quotes our own David O. Markus:
Miami criminal defense attorney David O. Markus, who helped write an amicus brief on Kuehne’s case for the National Association of Criminal Defense Lawyers, said he was optimistic that Cooke’s rulings will be upheld.

“I thought some of the unprecedented positions the government took showed how truly weak its position really is,” he said.
David also attended the argument and his thoughts on how it went are here.

Question to DBR -- it's been a while before I argued in front of Judge Hull, but has he done something to his hair? Did he lose some weight?

I can't put my finger on it.

Wednesday, September 23, 2009

3d DCA Watch -- "Sword-Wielders" vs. "Prime Movers" Edition

Hi kids, well the sun is shining, the per curiams are flowing, and thus all is well in my world.

Before we jump right in and drink deeply from the sweet judicial well of written utterances, I note that there is yet another revised set of directions for getting to the relocated 3d DCA for oral argument.

Pay attention, there have been a few modifications:
Park in high-rise garage (Panther Parking Garage) that is diagonally across from the FIU College of Law (NW of intersection of Campus Drive and Victory Drive). Entrance is on Campus Drive. Park on ground floor.

From 8:30 to 10:30 a.m. look for golf cart with attendant. Attendant will be wearing Irish kilt and playing bagpipes. He will provide you with first clue. You may either build a full-scale Lego model of the renovated 3d DCA courthouse, or you may jump from the top of FIU Stadium and free glide to your oral argument. DO NOT BE THE LAST TO ARRIVE. The attendant is provided courtesy of the Dade County Bar Association.
Well that's mighty nice of the DCBA, they are really always trying to make things easier.

On to the opinions.....

Wow -- by my entirely unscientific estimate, there were 10 civil opinions released this week, and almost all of them read something like this:

Galenos Holding v. Perez:

Galenos Holding, LLC, appeals an adverse final summary judgment entered in favor of A+ Title Service Corporation. Because the record reflects genuine issues of material fact, we find that the trial court improperly granted final summary judgment and reverse. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

Reversed and remanded.
I hope you found that helpful the next time these issues arise.

But luckily, the 3d did rule on an important case today, involving homeless people, "sword-wielders," and "prime movers."

No, you're not playing WoW with Chief Judge Ramirez, but this apparently is the actual test for determining whether the DOT can exercise its "home-venue" privilege and get this case the hail out of Miami and up to the safe confines of Tally:
In other words, a determination must be made regarding whether the State was the initial sword-wielder or “prime mover.” See also Florida Dep’t of Revenue v. Hardy, 697 So. 2d 954, 955 (Fla. 5th DCA 1997).
Hmm, that doesn't seem fair.

Sometimes I do feel like being the "sword-wielder," but other times I'm playful, almost coquettish, and want to be the "prime mover."

Why do I have to choose?

Let's Get Physical!

Hey, what do you know -- my friend Greg Ward is now a fitness instructor in the evening:
Ask a worker why they haven't exercised and the answer almost is automatic: I don't have time. It's the reason why more Americans desperately are turning to diet pills. It also is the answer Fort Lauderdale attorney Gregory Ward gave for being overweight until his sister died three years ago. Ward, now a fitness instructor in the evening, says it is challenging to get employers to care and understand employees need to make exercise a habit. ``As a formerly obese person, I think some employers don't understand how difficult it is.''
Jay -- he's talking about you, buddy.

BTW, it won't surprise anyone to know that I totally agree with Greg -- it's very important for professionals to focus on their diet and fitness.

You know what they say, clean the body and the mind will follow.

Tuesday, September 22, 2009

Glenn Garvin, Man of Peace.

Say what you want about the rest of Garvin's silly column today, but at least he ends with something I can agree with:
The unavoidable fact is that there is a rich history of violence on the fringes of both sides of the American political spectrum. The right, as liberals are fond of pointing out, has Timothy McVeigh and James Earl Ray. The left has the Puerto Rican nationalists who opened fire on the floor of Congress, animal-rights nuts and eco-terrorists. If Nancy Pelosi really sees trouble coming, she needs to look in both directions.
To be fair to Garvin, this is a modestly constructive point.

However, the examples Glenn cites for "left-wing" violence all spring from the decades-old Norman Lear dreamworld Garvin clearly still inhabits -- and you know who you were then, girls were girls and men were men, mister we could use a man like Herbert Hoover again, didn't need no welfare state, everybody pulled his weight, gee our old Lasalle ran great, those were the days!"

I mean, if only Meathead, I mean Pelosi, would just let the hard-hats bust the heads of a few long-hairs and Dingbat would stop inviting the Jeffersons over, and her cousin Maude would stop forcing the Tuckahoe Country Club to accept Jews .....

Seriously, the Symbionese Liberation Army? Jim Jones?

What's next, Glenn -- the Baader-Meinhof Gang?

Listen, I know the drugs were copious, the music was great, auteurs made real movies, and TV was much better than it is today, but dude -- come on out of the 70s.

The truth is, Glenn cites to no recent examples of left-wing violence because the right-wing stuff has emerged of late to be something of a real problem.

This from Steve Benen back in June, after the Holocaust Museum shootings:
Two months ago, Richard Poplawski, a right-wing extremist, allegedly gunned down three police officers in Pittsburgh, in part because he feared the non-existent "Obama gun ban." A few weeks ago, Scott Roeder, another right-wing extremist, allegedly assassinated Dr. George Tiller in Kansas. A few hours ago, Von Brunn, another right-wing extremist, allegedly opened fire at the U.S. Holocaust Memorial Museum.

There are other recent examples that bear similar characteristics. This story out of Tennessee from last year continues to haunt.

Knoxville police Sunday evening searched the Levy Drive home of Jim David Adkisson after he allegedly entered the Tennessee Valley Unitarian Universalist Church and killed two people and wounded six others during the presentation of a children's musical. [...]

Inside the house, officers found "Liberalism is a Mental Health Disorder" by radio talk show host Michael Savage, "Let Freedom Ring" by talk show host Sean Hannity, and "The O'Reilly Factor," by television talk show host Bill O'Reilly.

The shotgun-wielding suspect in Sunday's mass shooting at the Tennessee Valley Unitarian Universalist Church was motivated by a hatred of "the liberal movement," and he planned to shoot until police shot him, Knoxville Police Chief Sterling P. Owen IV said this morning.

Adkisson, 58, of Powell wrote a four-page letter in which he stated his "hatred of the liberal movement," Owen said. "Liberals in general, as well as gays."

Obviously, we're dealing with sick individuals here. There are key differences between violent right-wing radicals and mainstream Americans who happen to be conservative. Indeed, I'm not suggesting that conservative activists are necessarily dangerous, violent people.

Right, right, and right.

The point is, you'd have to be living in a Don Martin-inspired fantasy world if you are citing the 1954(!) shootings in Congress by Puerto Rican nationalists as somehow relevant to what is happening right here, right now in the fever swamps of the extreme right.

Oh hail Glenn, either stop watching television or return to watching it exclusively -- there's just too much spillover.

How Not To Find Clients.

Jay Weaver reports on the latest alleged hospital records-purchasing scheme:

Maria Victoria Suarez was added to an indictment that charges her and husband Ruben E. Rodriguez with paying a JMH ultrasound technician $1,000 a month for the hospital records of hundreds of patients treated for slip-and-fall accidents, car crash injuries, gunshot wounds and stabbings, federal authorities said.

The technician, Rebecca Garcia, a 22-year JMH veteran, has been fired and pleaded guilty in the conspiracy case.

The Rodriguezes brokered the stolen records of patients' names, addresses, telephone numbers and medical diagnoses to the lawyer over a two-year period, according to the indictment. The lawyer, not identified in court papers, used the information ``to improperly solicit JMH patients with hopes of representing them in future legal proceedings.''


How crudely unimaginative! This scheme really lacks sophistication, nuance and -- most importantly -- plausible deniability.

So anyways, who's the lucky lawyer?

Your Obligatory Iqbal Update and Other Random Items.

Hi, did you know that in just four months Iqbal has already produced more than 1500 district court and 100 appellate decisions?

Hmm, if Iqbal were a type of bread, what type would it be?

Ok, let me translate it into something even you ham-and-schleppers can understand -- Iqbal is like the Lindsay Lohan of Supreme Court opinions -- a once promising young talent who has descended into a desperate drug-induced haze of oddball wildchild Scalia-like excess.

But some grey-hairs apparently think there's something.....stupid (and/or boundless) about the new pleading "standard":

"I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen," said New York University School of Law professor Arthur Miller, a longtime expert on civil procedure. "Me, old fogy troglodyte that I am, I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."

Brooklyn Law School professor Eliza­beth Schneider, who has written extensively on federal civil procedure, said Iqbal is forcing trial judges to go "line by line" through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. "If that's not an open door to judicial bias, I don't know what is," she said.

Michael Carvin, a partner in the Wash­ington office of Jones Day and a frequent litigator on behalf of companies, countered that Iqbal has been "very beneficial" in "slowing the major abuse of litigation against corporations." He said, "You can't just throw mud against the wall. You have to have some theory of the case." Under the previous rule, companies contend, plaintiffs would state frivolous claims in hopes that companies would settle rather than face expensive discovery.

The main target for those seeking to roll back Iqbal is Congress. Sen. Arlen Specter, D-Pa., introduced a bill in July that would return pleading standards to the pre- Twombly status. A similar House bill may be introduced this week. To turn an esoteric issue like pleading standards into a popular cause, the groups that met last week may seek out individual litigants who can testify about how the Iqbal standard affected their lawsuits. "Though the issue may seem dry, we've already seen that Americans are being kept out of the courtroom as a result of Iqbal … so passage of this legislation is critically important," said Nan Aron of the Alliance for Justice.


Another strategy under debate is to seek changes in the Federal Rules of Civil Procedure regarding pleadings (Rule 8) and dismissals (Rule 12). Some critics say the Supreme Court, by deciding Iqbal as it did, in effect amended the rules without going through the rulemaking process. Rule 8, for example, calls for a "short and plain statement" of the plaintiff's claim in initial pleadings. At the Second Circuit's judicial conference this summer, Justice Ruth Bader Ginsburg, who dissented in Iqbal , said that in her view the court had "messed up the federal rules."

But altering the federal rules is a lengthy process, noted University of Penn­syl­vania Law School professor Stephen Burbank, a strong critic of Iqbal . He also cautioned, "The process is under the control of the Supreme Court, which is responsible for these atrocities." Chief Justice John Roberts Jr., who was in the 5-4 majority in Iqbal, appoints members of Judicial Conference committees.

U.S. District Judge Mark Kravitz of Connecticut, who chairs the influential Judicial Conference Advisory Committee on Civil Rules, said his committee is monitoring the impact of Iqbal and Twombly with an eye toward gathering data and discussing later this year whether rule changes are needed. "We ought to be deliberate about it," Kravitz said in his first comments to the press about the Iqbal issue. So far, he told The National Law Journal , a Recorder affiliate, his sense is that judges are "taking a fairly nuanced view of Iqbal " and that it is not yet "a blockbuster that gets rid of any case that is filed."

Indeed, not all judges are rubber-stamping Iqbal motions. During a hearing Aug. 10 in an employment discrimination case, Senior Judge Milton Shadur of the U.S. District Court for the Northern District of Illinois told defense lawyers that Iqbal and Twombly "don't operate as a kind of universal 'get out of jail free' card."

In unrelated news, congrats to 80% of FIU's Law School that passed the Florida Bar and whom new Dean Alex Acosta forgot to mention in his email last night:

From: "R. Alexander Acosta"
Date: Mon, 21 Sep 2009 19:10:15 -0400
Subject: [Students] Bar Results

Dear Students:

I write to inform you of this year’s bar results.

FIU has traditionally scored far higher than the statewide average. Last summer, for example, we ranked 2nd in the State.

This year, we exceeded the state average only slightly, with 72 of 89 students passing the Bar.

To have ranked as we did last summer, we needed 77 of 89 students to pass.

While this difference is small, it matters. I expect us to return to topping the statewide pass rates in the future.

R. Alexander Acosta


Florida International University

College of Law

Office: 305-348-1777

Fax: 305-348-1159

Alex also forgot that in February FIU was first in the state.

You can see all the results here.

Monday, September 21, 2009

Sew Sory Jugdge'; Eye Dont Spelle To Guude!

Ever have your pleadings redlined by a federal judge?

You have if you are Daytona lawyer David W. Glasser, who unfortunately ran straight into the red, rich and flowing editing pen of Middle District Judge Gregory A. Presnell.

You can see the judge's handiwork here.

Not only did the Judge do a fairly thorough line-edit for Mr. Glasser, he even asked politely (well, he ordered) David to "personally hand deliver" the Judge's edits to the client and then file a Notice of Compliance.

As my loyal tipster points out (and thanks, btw!), this is a judge who apparently once had lawyers play rock-papers-scissors on the courthouse steps to resolve a discovery dispute.

The whole thing's worth a read, kids.

Dear NFL, Welcome To State Court!

So I understand some football was played this weekend?

And some more will be played tonight, it seems.

Meanwhile the NFL is reeling from this 8th Circuit opinion released last week that allows players to challenge drug tests under their own state laws.

Preemption is great! (Unless it's bad).

Other sports are affected too:

Meanwhile, the 8th Circuit's precedent allows players to use state laws to challenge their sport's drug-testing policies, which could have broader implications for the NFL, the NBA, MLB and the NHL.

"The integrity of competition in any league hinges on uniform enforcement of rules, policies and procedures," said Deputy NHL Commissioner Bill Daly. "The integrity of any collectively bargained, league-wide drug-testing program hinges on the same uniform application.

"If allowed to stand, this ruling would compromise the stability of competition and undermine the public's confidence — a result that benefits no one."

I totally agree -- wait a minute, the NHL?

Are they still in business?

Come on, at least use a sport that matters.

You might as well consider an amicus from the peewee junior beach tennis association or the National Darts League or the Toy Train Aficionados as well.

Friday, September 18, 2009

SFL Friday Supplement -- It's 5770 Baby!

Ok, this time I really am heading off to launch my Days of Awe tour (btw, I have confirmed that dry gin is 100% parve) but before I go I wanted to mention a few things.

Did you all see that Joe DeMaria filed what looks like a pretty good lawsuit (if he can prove up the damages)?

And Debevoise, who is not (yet) named in Joe's suit, has its own worries.

Those cases should be fun to watch.

Well folks, as always this weekend I hope to refine my cooking skills, invest in some new purpose-built furniture, and of course make sure I keep up with my exercises.

That's gonna take some work, but I'm up for the challenge.

Happy 5770 everyone!

SFL Friday -- Happy Rosh Hashanah, You Plebes!

Well kids it's that time of the year again, when God opens up that big book of names, and he's making a list, and he's checking it twice, and he's gonna find out who's naughty or nice...

Oops, wrong holiday.

I'm in the middle of David Cross' hilarious new book, I Drink For A Reason, so believe me I understand the problems rational folks have with religion. Whether it's Cross, Kinison, Carlin, Hicks, Maher, or even that besotted comic Chris Hitchens, there is much hay to made here, and with good reason.

Still, you see a story like this, and you begin to reconsider the role of religion as an organizing force for a community to come together and find a shared meaning to the purpose of life:

Like many veterans, Max Fuchs did not talk much about what he did in the war. His children knew he landed at Omaha Beach. Sometimes, they were allowed to feel the shrapnel still lodged in his chest.

And once, he had told them, he sang as the cantor in a Jewish prayer service on the battlefield.

On Oct. 29, 1944, at the edge of a fierce fight for control of the city of Aachen, Germany, a correspondent for NBC radio introduced the modest Sabbath service like this:

“We bring you now a special broadcast of historic significance: The first Jewish religious service broadcast from Germany since the advent of Hitler.”

Mr. Fuchs, now 87 and living on the Upper West Side, was 22 that day at Aachen.

“I was just as much scared as anyone else,” he said in an interview in his Manhattan apartment. “But since I was the only one who could do it, I tried my best.”

Well-known in its time, the battlefield service became lost in obscurity, where it might have remained except for an archivist’s chance find and then, fast forward, unlikely fame on YouTube — where the 1944 service has drawn 310,000 hits — for Mr. Fuchs.

His grandchildren have been beside themselves with pride, relatives say, and the rabbi at Congregation Ramath Orah on West 110th Street, where Mr. Fuchs and his wife worship, is insisting that he sing at services on Saturday, which is Rosh Hashana, the Jewish New Year — though Mr. Fuchs says his voice is not what it used to be.

His performance on that 1944 broadcast, heard throughout the United States and later in Germany, however, brought a special poignancy to the 10-minute open-air service — partly because of his well-trained, stately voice, partly because a few seconds before he began the traditional “Yigdal” hymn, and for the three minutes it took to finish it, the crack of artillery shells exploding nearby could be heard clearly in the background.

A private first class in the First Infantry Division, Mr. Fuchs volunteered to sing that day because there was no cantor available. In fact, Mr. Fuchs had been studying to become a cantor, when the war broke out. But he had left his studies and was drafted, and never considered the chaplaincy.

His parents emigrated from Poland in 1934, when he was 12. Some of his aunts, uncles and cousins who remained were killed after the German invasion in 1939, he said in the interview. He wanted to fight the Nazis.
Anyways, for those who believe that God does have a list, you basically have 10 days to say you're sorry to all the people you screwed over and pray that you get it right next time.

So, on behalf of those South Florida litigators who may have done any of the following, let me offer an apology:

** Sorry for using ellipses and selective quotation to truncate and completely distort what you've written.

** Sorry for "forgetting" to cite contrary authority.

** Sorry for withholding damaging documents and playing hide-and-seek in responding to discovery requests because producing those documents would be very bad for my case.

** Sorry to have canceled and rescheduled hearings and depositions on bogus grounds so I can jockey to have my matter heard or obtain my discovery before you do.

** Sorry that in state court I keep rearguing motions I have lost, when we are there for another issue, in an effort to get the court to reconsider.

** Sorry to file boilerplate motions that require a lot of time and effort to resolve just because I can.

** Sorry to have to send out nasty letters or briefs on Friday afternoon just so I can have you work on responding over the weekend.

** Sorry I could not agree to your request for enlargement of time by claiming that "it's what the client wants."

** Sorry about my interruptions, speaking objections and coaching the witness -- boy was I out of control.

** Sorry about that bill (ok, not really).

** Sorry about that time I was a total d*&k.

Have a great weekend everybody!

Thursday, September 17, 2009

Don't Blame Us -- Blame Romeo The "Rogue" Lawyer.

For all you Becker & Poliakoff fans, there is this:

A West Palm Beach woman said she was victimized by BellSouth when she worked for the phone company, and then victimized again by her own attorneys, who messed up her case and hid the mistake from her until it was too late.

A Circuit Court jury on Wednesday agreed and said Becker & Poliakoff, the Hollywood-based law firm which represented her, must pay her $4.5 million for its mistake.

"I just said to myself 'Thank you God because you are the only one I have to thank'," Jackie Young said after hearing the jury verdict in her favor Wednesday. "After all that I've been through I never thought I'd be standing in this place."

Young was one of 54 employees who sued BellSouth in the 1990s alleging racial discrimination against black employees. Eventually a judge dismissed Young's suit in September of 2001 because of errors in the lawsuit filed by Becker & Poliakoff, according to the compliant she later filed against that law firm.

Becker & Poliakoff was founded in 1973 and now has more than 100 attorneys and offices across Florida as well as the Bahamas, France, Israel and the Czech Republic, according to the firm's Web site.

The firm did not tell Young that her case had been thrown out until October of 2002. By then it was too late for Young to fix the problems in the suit and refile it, so her claim against BellSouth was permanently dismissed with no avenue to appeal in the future, according to Young's attorney, Craig Zobel.

Zobel said the fact that it took a year for Young's attorneys to tell her about the case being dismissed was not a simple oversight.

During that time they settled the overall class action lawsuit with BellSouth and collected $2.9 million in attorney's fees. Young said that if she had known how her attorneys had made mistakes in her case, she would have told other plaintiffs to dismiss Becker & Poliakoff and the case would not have been settled.

"They were chasing a lot of money and they let her slip through the cracks," Zobel said.

Alan Becker, however, says it was all the fault of a "rogue" lawyer:

A senior partner at the firm, Alan Becker, issued a statement after the verdict saying it was the fault of the specific lawyer who handled the case, Thomas Romeo, not the law firm.

Becker said Romeo was a "rogue lawyer who filed this case without authority and contrary to his supervisor's clear direction. Unbeknownst to the firm and his colleagues, the case was filed and dismissed due to his error. Mr. Romeo purposely hid that information from all parties."

Becker said Romeo was later fired from the law firm and disbarred. Romeo was disbarred in 2003, according to the Florida Bar.

Ok, but what about the $2.9 in attorneys' fees that the firm collected? Did Romeo hide that too?

Despite whatever happened with this rogue Romeo, I'm sure Alan feels tremendous sympathy for the poor victim:
"We disagree with the verdict blaming the firm for (Romeo's) rogue behavior and we believe the damages are excessive," Becker said in his statement. "We will appeal."
Hey, even sympathy has limits.

Six Reasons I Will Not Be Blogging This Morning.

Hi kids, here they are:

1. I just had new speakers installed at my office and I plan to blare Quadrophenia at excessive volumes so the new associates stay way the hail out of my way (note to sweet kitchen lady -- you can still bring in the cafecito at 10:30).

2. It's National Constitution Day so I will be quietly reading the entire moldy oldie (while of course listening to Quadrophenia at excessive volumes).

3. I need time to compose an awesomely concise, 140-character or less Twitter message to my pals Hector Chichoni and Jared Beck, informing them that Twitter is an interim, transitional technology that will be about as relevant in 10 years as AOL Message Boards are today.

4. I'm still processing the arse-kicking that Brian Tannebaum's Criminal Offense delivered to the Well-Hung Jury.

5. I have finally found an instance where there can be no doubt that Iqbal has been properly applied.

BTW, the "lawyer" representing the plaintiff in the above case called the federal judge -- a George W. Bush appointee -- a "puppet" of Obama "just like in the Soviet Union" but did walk it back some by helpfully suggesting that "not every judge is as corrupt as Judge Land."

(Thank goodness she didn't post these comments on a blog!)

6. What else -- I'm going windsurfing.

Wednesday, September 16, 2009

3d DCA Watch -- (Possibly) Upholding A Serious Wrong Edition

Well kids it's time to take a deep breath and breathe breathe breathe, in and out, visualize, close your eyes and inhale slowly as you imagine yourself as a cork on the ocean, drifting ever so slightly across a judicial sea, a calm and peaceful sea, where there are frolicking dolphins and rainbows and lollipops and Judge Schwartz and.....

Hi, I see you're back.

Well let's just jump right in and take a peek at this week's wonderful world of written utterances:

BIV v. De Saad:

This is an interesting case involving a former bank VP who had been indefinitely "suspended" due to a little matter of allegations that she helped launder $4 million in drug proceeds.

After an acquittal on money laundering and conspiracy, she wound up pleading to a minor money structuring charge and then sued (via an assignment to her criminal defense counsel) for past wages and indemnification from the bank.

Judge Scola granted summary judgment to de Saad, and the bank, represented by the very competent Carol A. Licko over at Hogan & Hartson, took it up on appeal.

Given that there appears to be a Delaware case right on point, Judge Suarez writing for the Court affirmed on the indemnification:
We follow the Delaware court’s holding and likewise find that the trial court correctly granted final summary judgment in favor of de Saad and Beeler on the statutory indemnification claims, as de Saad was prosecuted “by reason of the fact” that she was an director, officer, employee, or agent of the corporation and was acquitted because she was “successful on the merits or otherwise.”
It's on the breach of the employment contract that things get...err... interesting.

The Court affirmed this piece as well, holding:
BIV suspended her without pay and relies on the personnel manual which specifies grounds for suspension of an employee when certain charges are pending for clarification. The Manual provides for suspension, but only until the charges are clarified. It does not provide for indefinite suspension. As de Saad points out, the term “clarification” is defined as “to make clear or easier to understand.” Webster’s II New Collegiate Dictionary 206 (2001). We do not equate the meaning of clarification to be the same as the meaning of resolution or disposition. Certainly, the charges against de Saad were clarified, if not by the United States’s filing of the Second Superseding Indictment, they were clarified by BIV’s findings in its own internal audit after de Saad’s indictment. Once the charges against de Saad were “clarified,” BIV had two options under the Contract. It could either pay her the compensation as required under the contract or terminate her under one of the justified reasons for termination under the Contract. BIV did neither.
But no no no says Judge Schwartz, specially concurring:
I concur as to the result only in the court’s disposition of the breach of contract issue. I do so without specifically ruling on – because the bank did not make the argument either below or on appeal – the possibility that the legal effect of the employer’s actions in “suspending” de Saad without pay amounted to what would have been an appropriate discharge for cause and should have been treated as such, notwithstanding that it was called something else.
In other words, even though the bank, represented by very able counsel, never argued below or on appeal that the indefinite "suspension" was an effective (indeed, appropriate) termination for cause disguised by another name, the Judge thinks it is nonetheless possible.

The Judge continues:
Because such a discharge would have been fully justified by the contract and the facts of the case, and because the mere unfortunate, but insignificant use of a euphemism has resulted in de Saad’s being paid at her contract rate for years of no work after she could have and should have been (and probably was) fired, it seems to me that we may have upheld a serious wrong.
This special concurrence raises a few questions.

Is a contractual term -- "suspension" -- in a personnel manual truly a "mere unfortunate, but insignificant....euphemism."

From the majority opinion, I thought the contract provides a mechanism for three stages of employment -- suspension, reinstatement, or termination.

Is there another, more euphemistic category of "termination by indefinite suspension" in the contract somewhere?

Also, if you believe the discharge was "fully justified by the contract and the facts of the case," and that "we may have upheld a serious wrong," then why concur as to the result only (affirming the trial court sj on breach of the employment contract)?

I also really like footnote seven:
Quite coincidentally, the following appeared in a recent article about an erring teacher: “Without discussion, board members suspended [her] without pay
Tuesday – an effective termination . . . .” Patricia Mazzei, Teacher Accused of Pushing Boy is Fired, Miami Herald, August 19, 2009, at 4B (emphasis added).
That certainly is quite coincidental -- given that it just happened to appear in the newspaper recently, is not part of the record below or on appeal and does not appear to constitute evidence or authority of any kind.

(I appreciate that the thought here is that everybody knows a suspension is a form of firing, it even just randomly appeared in the paper the other day with the term used in this very context.)

I actually enjoyed footnote seven so much I believe it may constitute a basis for reconsideration -- in fact, I hereby volunteer to draft an amicus on behalf of Ms. Mazzei, clearly setting forth her view of suspension vs. termination for cause and how her recent article should inform the facts of this case.

Carol, are you listening?

Smiles, Everyone!

We've previously written about the $22.5 billion RICO suit that Podhurst's Steven Marks brought in Russia against the Bank of New York Mellon, which involved an expert affidavit by none other than Michael Hanzman.

Forbes previously reported that the plaintiffs were looking at something like $800 million as a reasonable settlement figure.

Looks like that didn't go too well:

The Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million, after the two sides made a separate deal for a trade-financing pact, a senior Russian government official said Wednesday.

Alexei Kudrin, the Russian finance minister, told legislators that the giant American bank will cover legal costs incurred during the two-year suit, which was tied to a late 1990s scandal in which a bank executive was accused of secretly moving $7.5 billion out of the country.

Mr. Kudrin said that the Russian Federal Customs Service, which brought the suit, had “insufficient” evidence to win the case, which was being heard in Moscow Arbitration Court.
So the $14 million covers Steve's fees and costs, and that's it?

Ok, maybe that's not a bad result after all.

Tuesday, September 15, 2009

Pat Riley Would Rather Not Be Deposed.

So Dwyane Wade and his Bilzin attorney Mike Kreitzer are gearing up for a big mediation tomorrow before Bill Hearon that may resolve a number of lawsuits pending against the Heat megastar:

Wade attorney Michael Kreitzer said the Heat star wants all issues on the table. The mediation session was ordered by a federal judge in an antitrust case accusing Wade of seeking a South Florida monopoly on his sports memorabilia, the sales of which were to be a cornerstone of the failed D. Wade's Place restaurant chain.

"We simply suggested, and the other side agreed, that if there was going to be a discussion about settlement, it made sense for the discussion to encompass all of the cases," Kreitzer said in an e-mail. "If a resolution could be reached, the resolution would be final as to all matters."

Wade also was sued by his former partners, Mark Rodberg and Richard von Houtman, for breach of contract in the restaurant venture. A similar case brought by Rodberg accuses Wade of walking away from obligations to the charter schools, now known as Mavericks in Education Florida LLC. Wade has accused von Houtman of defaming him in e-mails to Heat president Pat Riley, and von Houtman has filed a countersuit to that.

Without a deal, Wade could find himself in courtrooms and law offices for months instead of focusing on the Heat season that begins with training camp on Sept. 27.

"This has got to hang like the sword of Damocles over his head," said Washington attorney Bruce Fein, who represents the plaintiffs in the memorabilia case.

Among the pending issues is a subpoena served on Heat President Pat Riley in the antitrust case before Judge Marra. Riley, represented by Alan Fein, has so far refused to appear for his deposition.

Reading the plaintiff's motion to compel Riley's deposition is a hoot. Here's their framing of the dispute:
Plaintiff has strong reason to believe that Pat Riley’s deposition could lead to the discovery of admissible evidence, which is the Rule 26 standard for witness depositions under the Federal Rules of Civil Procedure. Defendant Henry Thomas has stated under oath in a deposition that Pat Riley spoke to him twice about Wade’s involvement in the JVA and Riley’s concern over Wade’s business partners, i.e., Plaintiff. Wade may have spoken directly to Mr. Riley or vice versa about the JVA. The Miami Heat had a clear incentive to conspire with Wade to destroy the JVA because the latter was a competitor in the retail sale of personalized Wade sports memorabilia and in demands on Wade’s advertising availability and time. Wade may have informed Riley of why he was abandoning the JVA. Defendant Andrews or Defendant Case 9:09-cv-80607-KAM Document 41 Entered on FLSD Docket 09/10/2009 Page 3 of 7.

Thomas might also have done so. As President and former head coach of the Miami Heat, Pat Riley would be knowledgeable of Wade’s unique market niche as an NBA superstar and the value of Wade’s name, likeness, and image in promoting the Miami Heat. In summary, Pat Riley inarguably is a proper person for Plaintiff to depose under Rule 26.

Plaintiff’s attorney, Bruce Fein, spoke by telephone with Mr. Riley’s attorney, Alan Fein, on August 25, 2009, in an attempt to discuss the issued raised by Ms. Melchiondo and to set a deposition date. Mr. Fein, however, insisted that Pat Riley would not agree to any deposition at any time. The reasons given by Mr. Fein were at least fourfold: Plaintiff’s antitrust claims gave legal frivolity a bad name; Plaintiff should have named the Miami Heat as a Defendant if it were surmised that the Heat were implicated in Wade’s alleged antitrust violations; Mr. Riley knew of no “smoking gun” that would conclusively prove Wade guilty of an antitrust infraction; and, Mr. Riley did not track retail sales of sports memorabilia by the Miami Heat.
The plaintiff says these arguments are "frivolous" and "amateurly misconstrue the discovery standard under Rule 26."

It's one thing to misconstrue the discovery standard, but come on, at least do it like a professional!

The motion seems like a stretch, however, and even though it's not technically an APEX depo I think the equities are not in the plaintiff's favor here, at least not before other discovery is taken first.

Wade, my advice is to settle these suckers tomorrow.

RIP Patrick Swayze.

Forum Nons Are Funny Things

Remember that Chevron suit in Ecuador that Glenn Garvin wrote about recently? (We gave our take about it here).

Glenn basically accused the lawyers bringing the suit of carpetbagging, filing the case down there when the politics of that country started to take a leftward tilt.

This, of course, makes no sense, but who knows?

Well it turns out the suit was -- as I suspected -- originally filed in the United States, and it was Chevron was insisted -- over the plaintiffs' objections -- that the courts in Ecuador were perfectly capable of administering justice:
This case was originally filed in U.S. federal court in 1993. Texaco submitted 14 expert affidavits praising Ecuador's courts and used that as a basis to move the case to Ecuador over our objections. They succeeded, so we refiled the case in Ecuador.
Never lets facts get in the way of a good story, I always say.

Monday, September 14, 2009

When Lawyers Blog

As Mr. Markus notes, the Broward Blog and allegedly intemperate judicial commenter Sean Conway made the front page of the Sunday NYT:

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately accepted Mr. Conway's earlier reprimand agreement with the bar, which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under the First Amendment.”
I am a strong advocate for professionalism and civility among members of the Florida Bar.

And without wading into the particulars of Mr. Conway's case, I also obviously feel there is a value in lawyers commenting on -- and sometimes even criticizing where appropriate -- the courts and the legal process and attorneys and judges who participate therein.

In my view the entire panoply of expressive tools should be available for that purpose -- sober essays, humor, satire, irony, poetry, song, drum circles, Bo Derek photos whatever.

But when is too far too far?

Some of the situations identified in the Times article are unique -- if you are practicing before a particular judge in a particular case, you owe specific obligations to the Court that arise from that representation, whether you are in court, on the beach, in bed with your significant other, or posting on this crappy blog.

But what are the constraints that should apply in situations where we don't have a case in front of a particular judge, but still have an opinion? Do we as lawyers have the right to express it, and if so, how and where? In a classroom, in a law office, at a restaurant, or on a blog?

A related question is what is the appropriate sanction, if any, for comments that go "over the line."

Is the disciplinary process always necessary, or is opprobrium by peers or persuasive counterarguments a better solution?

Should the test for disciplinary action be, as the Bar suggests, whether or not the comment "was uttered in an effort to expose a valid problem"?

Look at poor Mr. Liar Liar Pants On Fire Joe Wilson, the new Joe The Plumber/Bob Roberts of the 20 percenters.

Should he be formally censured or admonished by the House, or is it sufficient that fair-minded people reacted with shock and derision at his outburst?

To me the latter is the best course. We live in a democracy, not a monarchy, and an idiot should be allowed to heckle the President without fear of formal sanction, even an idiot who coincidentally has spent much of his career defending the Confederate legacy.

Besides, what will a censure mean to Joe Wilson as compared to a solid arse-kicking by Jon Stewart?

What about the tea baggers who marched on DC over the weekend? What is the best way to deal with this type of free speech:

The line of protesters clogged several blocks near the Capitol, according to the D.C. Homeland Security and Emergency Management Agency. Demonstrators chanted "enough, enough" and "We the People." Others yelled "You lie, you lie!" and "Pelosi has to go," referring to House Speaker Nancy Pelosi, D-Calif.

Throngs of people waved U.S. flags and held signs reading "Go Green Recycle Congress" and "Obama Bin Lyin.'" Men wore colonial costumes as they listened to speakers who warned of "judgment day" - Election Day 2010.

Other signs - reflecting the growing intensity of the health care debate - depicted President Barack Obama with the signature mustache of Nazi dictator Adolf Hitler. Many referred to Obama as a socialist or communist, and another imposed his face on that of the villainous Joker from "Batman."

Or how about Serena Williams, who threatened to shove a tennis ball down a line judge's throat on Saturday, then showed up at the MTV Video Music Awards later that night and will be playing in the women's doubles final today? Is there a point to the formal $10k fine, or does treating her like a superstar on MTV send a bigger message?

Obama was articulate and bright on 60 Minutes last night as usual (see, Joe was right!), lamenting that "civility" is not very interesting and there has been a general coarsening of discourse in our culture generally.

He's right, of course. The bigger question is what tools do we use to address this problem, and which ones should be used, and when.

My own view -- save formal sanctions for the really bad stuff.

Mockery, derision, and robust condemnation with a few YouTube clips thrown in should be adequate most of the time.