Wednesday, June 30, 2010

The Night They Cancelled 3d DCA Watch.

I'm sorry I'm a bit late with 3d DCA Watch, but as I started to read the endless PCAs that constituted this week's opinions, my mind got sleepy, I began to dream of a large field, filled with daisies, frolicking wildy, giggling, laughing in the rain, twirling in joy, pure ecstasy in the glistening sun, then I awoke several hours later and realized there was absolutely nothing to write about.

Let me give you an example:

Doctor Diabetic v. POAP Corp:


This is an appeal of a summary final judgment in a breach of contract action. We concur with the trial judge that the damages sought by the appellant Doctor Diabetic Supply, Inc. amounted to consequential damages. See Hardwick Props., Inc. v. Newbern, 711 So. 2d 35, 40-41 (Fla. 1st DCA 1998). The parties’ contract contained a Limitation of Liability provision which precluded recovery of consequential damages. The summary judgment is affirmed.
See what I mean?

Dan Gelber and Akerman: Who's Zooming Who?

The always intrepid Julie Kay breaks the slightly late resignation of Dan Gelber from Akerman in the wake of that firm getting the massive BP business:
State Sen. Dan Gelber has resigned his counsel position with Akerman Senterfitt two weeks after saying his firm’s representation of BP was a “non-issue.”

Gelber is joined by state Sen. Joe Negron, who quit Akerman in the last week to join Gunster in West Palm Beach. Two other state lawmakers are still working at Akerman: state Sen. Alex Villalobos and state Rep. Joe Gibbons, a nonlawyer consultant.

Read the letter from Dan Gelber to supporters

Gelber, who now plans to run full-time for Florida attorney general, said he planned to quit immediately after being told by the Daily Business Review that his firm has been hired to represent BP for all Florida civil litigation. “I knew immediately I would have to,” he said. “But it doesn’t happen overnight. I’ve been a lawyer for 25 years. I have a lot of clients to tell.” But Gelber also said it was not an issue since he was of counsel and not an equity partner at Akerman, Florida’s largest law firm. Villalobos, who also is of counsel, agreed and shared a letter he wrote to Akerman’s managing partner, Andrew Smulian, on May 24 asking that the four legislators who work at Akerman be “walled off” from any BP discussions or documents.
As I said, I know and like both of these candidates, and they are eminently qualified and will make terrific AGs.

But Gelber should have immediately tendered his resignation in light of Akerman's retention, and not argued irrelevancies like his of counsel relationship and whatever Chinese Wall his firm thought was high enough to erase any perception of conflict.

And even if he decided last week he had to resign (before Aronberg demanded it), that is one week after the story broke and therefore one week too late. He should have included his resignation in his first public statement on this matter.

But really this episode shows you how little regard Akerman holds for its "of counsel" partners.

When they ran the conflicts check, the issue with Dan obviously came up.

And rather than support their partner and stay on one side of that issue, they seem to have decided that gelt is the better part of valor and the dude running for office will have to deal with the consequences.

Two weeks later, he did.

Tuesday, June 29, 2010

Spencer Aronfeld Stars in New Zombie Movie?

I really dig Spencer's videos, you can check them all out here, but in this one he seems to be starring in a new Dawn of the Dead or Blair Witch remake, with the trademark shaky hand held camera work and obligatory hungry zombie lurking just outside of camera range.

Nice shoes btw!

Estate Lawyers Announce New Website!

Here at SFL headquarters our crack team of researchers pore over a lot of press releases, so perhaps we're a bit jaded.

But let me make a suggestion -- save your press releases for something mildly important, newsworthy, or otherwise interesting.

I'm not certain this one qualifies as any of the above:
Miller and O’Neill, Attorneys at Law announces the launch of their newly revised website. The South Florida Estate Planning and Trust Administration Law Firm's new site features dedicated sections with extensive information about their practice areas and a blog section with valuable estate planning resource articles. Additional components and multimedia content includes an interactive flash services header on the home page, in-depth attorney profiles, resource links, community involvement projects, and other useful components are featured on Miller & O’Neill's new site.
Ok guys, I know you're excited, but we're talking estate planning.

I don't know if I ever want "multimedia content" or "an interactive flash services header" when someone is trying to explain to me the laws of intestacy -- unless it's R-rated (but I'm funny like that).

BTW, their snazzy new website is here.

Monday, June 28, 2010

Slow Monday.


created at
So the blabberfest that constitutes a Supreme Court confirmation hearing begins today, as Solicitor General Elena Kagan takes the hotseat.

I don't think they have all that much to work with:

Republicans — who have not ruled out a filibuster — will seek to define Kagan through her liberal associations to paint her as an activist who would write new laws from the bench.

“You have to ask who she admires, who she identifies with, who she supports, who she worked for,’’ said Sessions.

Oh I know I know -- Bill Ayers, Reverend Wright, and of course Mickey Dolenz?

There's also this:
Judiciary Committee member Sen. John Cornyn (R-Texas) wrote in a column Sunday evening that "it is reasonable to worry that [Elana] Kagan is a judicial activist simply because President Obama nominated her."
As Steve Benen points out, this logic is refreshingly circular.

Sigh, it's going to be a long day.

To make things easier, I have condensed today's hearing into a word cloud, using the entirety of Senator Cornyn's USA Today column.


Friday, June 25, 2010

SFL Friday -- Second Chakra Edition

The WP's Ezra Klein offers some bracing insights into all those supposedly confidential listserves everyone and her mother belongs to:
A private e-mail list is not public, but it is electronically archived text, and it is protected only by a password field and the good will of the members. It's easy to talk as if it's private without considering the possibility, unlikely as it is, that it will one day become public, and that some ambitious gossip reporters will dig through it for an exposure story. And because that possibility doesn't feel fully real, people still talk like it's private and then get burned if it goes public.
(Boy I hope my Bo Derek Is a Goddess listmates don't turn on me after all these years.)

Sheesh, what else?

I see Adorno's decades-long defense strategy in citrus canker continues to reap taxpayer dividends.

Next stop -- the obligatory, pointless appeal.

Here is a list of decent sci-fi movies coming out in 2011 -- actually, none of them look that good, but what do you think?

Finally, I've gathered all the necessary gear and intend forthwith to windsurf my way into a glorious weekend.

How about you?

Before I go, all I can say is oy with this second chakra business, Helen Mirren has still got it, sacred unions are fun, and women have much nicer voices (though you already knew that).

Have a great weekend everyone!

Judge Fay Explains How Works!

Hey it's Friday, right, so why not have Judge Fay explain the business model of Miami's own
The CocoDorm website transmits images, via webcam, of the residents of 503 Northeast 27th Street, Miami, Florida, over the internet. This residence, which is zoned multifamily high-density residential (R-4), is owned by Angel Barrios and leased to Flava Works, Inc. The persons residing at the 27th Street residence are independent contractors of Flava Works, and, in exchange for $1,200 per month plus free room and board, are expected to engage in sexual relations which are captured by the webcams located throughout the house. Individual subscribers pay Flava Works, through the CocoDorm website, for access to live or recorded video feeds, including sexually explicit conduct, from the webcams in the 27th Street residence.
Kids, we're not in Kansas anymore.

Unfortunately, Judge Fay found that Judge Cooke erroneously relied on that venerable precedent we all remember from law school, Voyeur Dorm:
The district court’s reliance on Voyeur Dorm in concluding that Flava Works was not operating a business at the 27th Street residence is misguided. Just because the Tampa ordinance defining “adult entertainment establishments” limits its application to businesses does not mean the ordinance applies to all businesses.
Furthermore, Voyeur Dorm did not hold that the Tampa residence was not a business, it merely held that the residence was not an adult business establishment (where there was no public offering of adult entertainment), which is a much narrower conclusion. We agree with Flava Works that an adult business is always a business. However, the opposite is not necessarily true. The vast majority of businesses are not adult businesses but are nevertheless prohibited within residential zones. As such, we decline to apply such an expansive reading of Voyeur Dorm and find that it does not address a prohibition against the operation of all businesses within a residential zone.
Inexplicably, neither party cited Venetian Salami.

Suge Knight Still Hasn't Paid $1300 Sanction Yet.


Remember how poor Marc Brumer had to sit there waiting for his client Suge Knight to show up for his own deposition, then Suge came really late and Magistrate Judge O'Sullivan sanctioned him $1300?

Well Suge still hasn't paid, necessitating yet another order:
ORDERED and ADJUDGED that the defendant’s request to have this case dismissed for the plaintiff’s failure to pay the $1300.00 as required by the undersigned’s May 4, 2010, Order (DE #42) is DENIED. It is further

ORDERED AND ADJUDGED that on or before July 6, 2010, the plaintiff shall pay the $1300.00 ordered to be paid by the undersigned’s May 4, 2010, Order (DE # 42) or submit to the Court an affidavit as to why the plaintiff’s financial condition prevents him from paying the $1300.00. If the plaintiff chooses to submit the affidavit, he must attach all supporting financial documents.
Wow -- is Suge really saying he can't afford to pay a $1300 sanction?

In related news, Suge and Kanye met the other day to try to settle the case:
West and Knight sat down with lawyers June 19, 2010, to discuss the lawsuit. "I figured I could sit him down, man to man, and get this resolved," Knight said of the six-hour meeting. "I'm disappointed."
Note to Suge -- when talking about sitting down "man to man," you may want to remember your presiding judge is a woman.

I'll say it again, poor Marc Brumer.

Thursday, June 24, 2010

Bill For Document Production: $2+ Million.

Simon Ton Order on Production

It's interesting to see that prominent lawyers and judges don't read fine print just like regular folks don't, but I sometimes wonder whether lawyers read rules and statutes anymore either.

Here's a pretty amusing order from Magistrate Judge Simonton, in which she denies a request by a defendant bank to compel the plaintiff to pay over $2 million for producing documents in discovery.

The alleged basis for the defendant's request is a Florida statute applicable to financial institutions only in the subpoena context, not when they are defendants producing documents pursuant to Rules 26(g) and 34.

All I can say is the Magistrate Judge is way more patient in addressing this than I would have been:
Plaintiffs obtained the documents in question from Defendant Bankatlantic through discovery. Thus, the plain language of Fla. Stat. § 655.059 states that it only applies when a financial institution provides documents pursuant to a subpoena. Therefore, it appears that § 655.059(1)(e) does not apply here, where Bankatlantic is a party to this litigation, and provided the documents at issue pursuant to discovery requests, and did not provide Plaintiffs with the documents as a non-party, pursuant to subpoena. Bankatlantic has not provided any caselaw which supports its argument that § 655.059(1)(e) applies when the financial institution is a party providing discovery.
Come on people, at least make an effort.

Polk Salad Iqbal.

You know how the Herald always runs WP opinion columns two days after they have been published and long after they have been thoroughly discussed and dissected online?

Well that happened again with this stupid column by former Bush speechwriter Michael Gerson.

Gerson -- who helped mislead us into a costly and unnecessary war, who came up with the Orwellian phrase "regime change," who previously had phony vapors over Franken's old jokes -- is now very unhappy over Franken's speech about the Supreme Court to the ACS national convention (what I call the anti-Federalist Society).

It's funny that the Herald published Gerson's dishonest screed about the speech, but never actually covered the speech.

Oh well -- for those who want to evaluate it for yourself, you can see it here.

The best part was the way Gerson got mad over something Franken never said and Gerson just made up:
No, in Franken's view judges should be more like the Committee of Public Safety during the French Revolution -- an unelected group of super-legislators who issue binding verdicts based on their own advanced conceptions of justice and the class warfare.
Huh? You mean Franken wants the Supreme Court to issue orders to send thousands of people to the guillotine?

How totally French of him!

I must have missed that part of the speech.

Franken did say this:

In Stoneridge, it stripped shareholders of their ability to get their money back from the firms that helped defraud them.

In Conkright, it gave employers more leeway to deny workers their pension benefits.

In Leegin, it made it harder for small business owners to stop price fixing under the Sherman Act. Now, the burden is on them--small business owners--to show that price fixing will hurt competition.

In Iqbal, it made it harder for everybody to get their day in court.

In Exxon, it capped punitive damages resulting from the Exxon Valdez oil spill because, get this, having to own up to your mistakes creates "unpredictability" for corporations. Which, by the way, means that BP's liability may be capped because the Court doesn't want to cause an unpredictable impact on its future profitability.

In Rapanos, it cut huge swaths of wetlands out of the Clean Water Act. Wetlands that had been covered for 30 years.

You know what has a lot of wetlands? Minnesota. No, really. You know what else has a lot of wetlands? The Gulf Coast.

I have some problems with this speech, but Gerson is way over the top in his criticism.

BTW, most lawyers who advise large corporations will admit that the Roberts Court is more pro-business than prior Supreme Courts, and perhaps that's a good thing.

And, contrary to Gerson's ill-informed assertions, there is objective evidence supporting this perception:

For its study, the center took a look at 53 cases decided since Justice Samuel Alito joined the court early in 2006 and in which the Chamber of Commerce played a role.

The group won 64 percent of those cases and 71 percent of closely divided cases — those with five-justice majorities, the report said.

Alito has the highest support for the Chamber of Commerce's position, 75 percent overall and 100 percent in the close cases. Justice Anthony Kennedy supported the group's position 67 percent of the time and the other three conservatives, chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, were between Alito and Kennedy.

More on that here.

Wait a second -- 100 percent in close cases?

Maybe that's the kind of "fair and balanced" ump Gerson likes.

Wednesday, June 23, 2010

"You Get Nothing!"

For those of you still following that GrayRob conflict-of-interest issue, in which they put in for substantial fees even after being removed as receiver, you can see what MD FL Judge Steele thought of that above.

(Actually, courtesy of Scribd, the Court's order is here.)

3d DCA Watch -- The Continuing Story of BDO Seidman

Well it feels good to be back in the saddle again.

Three things I learned from my recent "unplugging":

1. Working a matter up for trial is hard.

2. There are too many distractions in the day, and it felt clarifying to be able to focus for extended periods of time on a single topic or issue, without answering phone calls, continually looking at emails, or incessantly surfing the tubes for Drew Barrymore updates.

3. Oy with this Sultan of Brunei.

Speaking of Resplendently Robed Ones™, let's dig right in and see what written utterances have emerged from our very own sometimes blinkered, always bunkered band of A-Team judicial misfits:

BDO Seidman v. Banco Espirito:

It's nice to see the 3d DCA pick up some steady work.

Here, that work consists of regularly passing on various appellate issues that arise from the accounting malpractice trial that has been playing to sold-out audiences before Judge Rodriguez for several years, with no apparent end in sight:
The accounting firm of BDO Seidman, LLP appeals a jury verdict and final judgment awarding the appellees over $159 million in compensatory damages and over $351 million in punitive damages. The appellees—Banco Espirito Santo and two of its affiliates (collectively, “Banco”)—cross-appeal the denial of prejudgment interest on the compensatory award from the date the losses allegedly occurred through the date of the jury verdict. We reverse the final judgment and remand the case for a new trial, finding that the “trifurcation” of the trial into three distinct phases impermissibly allowed the jury to render a verdict on BDO’s liability for gross negligence (a determination pertinent in this case as a predicate for the later consideration of punitive damages)1 two months before the jury’s consideration of, and verdict deciding, the intertwined issues of causation, reliance, and comparative fault.

Because of the prejudice inherent in the premature, first-phase gross negligence finding, we do not address in detail other aspects of the trial. Our conclusion regarding the “trifurcation” issue renders moot or pretermits our consideration of most of the other parts of the jury’s verdicts and the remaining points on appeal and cross-appeal.
I once had trifurcated premature, first-phase gross pretermittal -- once.

(It may have been the six Gin Gibsons, I'm not sure.)

Actually, reading Judge Salter's clear, concise, calm opinion, it's amazing anyone could have thought otherwise. Here's the nub of it:
The trial court ultimately determined that comparative fault and causation issues would be tried and determined in the second, compensatory damages phase rather than in the first phase. The question of whether BDO was “personally guilty of gross negligence” would be determined in the first phase. The jury would then be asked at the close of phase II whether Banco was entitled to punitive damages against BDO (and if so, the amount of those punitive damages would be determined in phase III). This meant that the phase I jury deliberation regarding negligence and gross negligence did not include specific evaluations of the alleged negligence and fault, including failures to report or act, on the part of the Banco parties and ten third-party or Fabre actors. Those determinations occurred instead at the close of phase II, when all of the evidence in that phase was viewed against the backdrop that BDO had already been found not merely negligent, but so negligent (or “guilty”) as to arise to the level of intentional disregard for the rights of others.
This makes eminent sense, though that means they have to do it all over again (presumably without Big Lew Freeman).

Judge Salter at the end is sympathetic to a case that has dragged on for years, consumed seven months of trial time and has resulted in one mistrial already, but he ultimately concludes that the "cart cannot lead the horse," which either was the title of an old episode of Little House on the Prairie or else is judicial-speak for "enjoy the retrial."

I guess for the 37 firms involved, that's a good thing?

I Shall Return.

A lot to look forward to, so much has happened, I'm back and fully "plugged in."

Thanks to GB for ably manning the helm and to all the commenters who have pitched in, have to deal with a pesky judge this morning and then away we go.......

Tuesday, June 22, 2010

Padding Your Bra

I never understood falsies, and not just because I am an ass man, mind you.

Here is my thinking.

1. You have to be comfortable with who you are and what you bring to the, er, table. Everything else flows from that.

2. There is nothing more seductive or alluring than self-confidence (as opposed to a false or inflated sense of self).

3. There is nothing attractive about uniformity. "Perfection" is a myth.

4. Eventually, the real you will, ah, come out, right? And doesn't that disclosure kind of define the relationship going forward?

Which is pretty much how I feel about the growing trend of law schools padding the grades of their students.

According to the New York Times, Loyola Law School Los Angeles is the latest law school to join NYU, Georgetown, Golden Gate (huh?), and Tulane to retroactively inflate every grade recorded in the last few years. Yup. Just tack on .333 to every grade. The goal is to "make their students look more attractive in a competitive job market." What the hell are we talking about again?

Note to self: cozy up to the new UM Law Dean next time she visits The Firm to ask for money, and talk to her about how much it would cost to raise everyone's grades going back, oh, twenty six years or so.

Other schools, like Duke (whatever) and its competitor Southern Methodist University pay people to hire their students on internships. That's hilarious. Only Duke. Duke's like the pimp of law schools.

“For people like me who have good grades but are not in the super-elite, there are not as many options for getting a job in advance,” said Zachary Burd, 35, who just graduated from Southern Methodist University. A Dallas family law firm will receive $3,500 to “test drive” him this August.

“They’ll get me for a month or two, for free, to try me out,” he said. “It’s safer for them, and it’s a good foot in the door for me.”

Zach, here are a few tips: 1. never start a sentence with "for people like me..." 2. what the hell are you talking about, "getting a job in advance"? 3. You went to law school in Texas. 4. Family "law"? You went to law school for that? Really? 5. You are 35 years old. Two words: "PERENNIAL STUDENT." 6. Your "good" grades are FAKE!

What the hell is wrong with that guy?

Or this:

“If somebody’s paying $150,000 for a law school degree, you don’t want to call them a loser at the end,” says Stuart Rojstaczer, a former geophysics professor at Duke who now studies grade inflation. “So you artificially call every student a success.”

Hey Stu? Allow me: LOSER! How is it possible for Duke to attract so many crybabies with an entitlement mentality?

Or you could just be like Yale/Harvard, and eliminate grades altogether. Which kind of makes those schools the Paris Hilton/Lindsay Lohan of law schools. Think about it: elitist; poorly behaved but only in rarefied circles; no real accountability once you're in the family; basically anyone will have you, at least for a little while, no matter what; eventually, everyone who has you, tires of you.


Now that I've gotten that off my chest, I encourage you to patronize the Arts and check out the collaboration between Christian Louboutin and photographer David Lynch.

N.B. The views expressed in this post do not necessarily reflect the views of South Florida Lawyers. Except for the whole Yale/Harvard thing. And the Louboutin pumps.

Monday, June 21, 2010

Separate But Equal

Flashbacks to law school, right? Brown v. Board of Education?

56 years after the Warren Court held that segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprives the minority group children of educational opportunities and thus that separate but equal is inherently unequal, the Israeli High Court cited the opinion in striking down what petitioners said was ethnic segregation.

Oy! And you thought Bush v. Gore created a stir...

The Israeli Supreme Court's ruling has resulted in charges of racism on one hand and infringement of religious freedoms, on the other. And now contempt orders, as people continue to ignore its ruling, with significant support.

This little dispute finds ultra-Orthodox Ashkenazim of European origin on the other side of the wall, literally, from their slightly less stringent ultra-Orthodox Sephardic peers from Arab and North African backgrounds. (Hmmmm.......)

The lead-in, from the New York Times article:

"The latest dispute erupted over the goings-on in a single, state-financed girls’ elementary school in Immanuel, a somewhat remote ultra-Orthodox settlement in the northern West Bank.

The settlement, with a population of about 3,000, has a majority of Sephardic Jews, as does the school in question, Beit Yaakov. But about three years ago, a group of Ashkenazi parents, who said they followed stricter religious practices than some of the Sephardim did, set up a separate educational track within the school, called the Hasidic track. A wall went up inside the building, and to prevent any social mixing the playground was split by a fabric-covered fence.

About 75 girls moved over to the Hasidic side — a few of them Sephardim who agreed to the more stringent rules and dress code. One of the original requirements was that all prayer be conducted in the Ashkenazi style, including the girls’ prayer at home."

The Time article does a nice job succinctly explaining why this is not a tempest in a teapot and the political importance of the ruling in the context of the population growth of the ultra orthodox, or Haredim, in Israel.

The Supreme Court's contempt order resulted from the parents of the Hasidic track students refusing to send their daughters to school with the Sephardic girls. As a result, the court ordered those parents to serve two weeks in prison. “It is about whether to listen to the Torah or to the Supreme Court,” one Hasidic track parent said. “We are going to prison with pride.” (I love my kids and all, but.....)

The Court in its contempt order alluded to the need for federal troops to intervene in Little Rock to enforce Brown v. Board of Education, and its hope that such action would not be necessary in Israel.

Often over cocktails (sometimes he'll forgo the Gibson for a Martini, but he likes them dirty) SFL and I remark, among other things, how open debate is often stifled here, and that does not seem to be the case abroad.

Take the first sentences in this Editorial, titled "The Lost Jews", in The Jerusalem Post, for example.

"A collective abandonment of authentic Jewish values seems to have overtaken the haredi community.

Nothing else can explain the phenomenon of tens of thousands of religious zealots, dressed in black hats and coats, congregating under the glaring midday sun to fight for the right to discriminate against their fellow Jews." (Is that a reference to the Beastie Boys' anthem?)

I'm all about terse prose that pulls no punches.

N.B.: Perlman is to Klezmer what SFL is to blogging.

Friday, June 18, 2010

Things have been broken. Wrongs have been done. People have been hurt.

Man, that sounds like a big scandal to me, but if anyone can get to the bottom of things and obtain Justice, its Ervin.

Speaking of breathy and dramatic, did everyone receive the spam email "Tax Attorney David Garvin Congratulates Helio Castroneves On New Book!"?

In his mass email, Tax Attorney David Garvin shared Helio's vivid description from “Victory Road: The Ride of My Life”, Helio's book that portrays the drama and intensity of Helio's tax trial where Tax Attorney David Garvin watched Roy Black defend Helio (why do I keep calling him Helio? I don't even know the dude. HELIO!).

“Mr Castroneves, stand up please.” As soon as he says it, all of the emotions I have been holding in for the past six weeks begin to surge forth…Muffled in the background, the judge begins to read my verdict. I cannot hear anything he says, just echoes inside my own head, my gasps for breath.

All of a sudden, my attorney, David Garvin, grabs me, hugs me, and he repeats something to me over and over again until it becomes clear. “I told you it was going to be okay.” My senses slowly return to me and I hear the judge still speaking.

That Helio sure is emotive, eh?

Anyhoo, I'm spent. I need to get away, and you should all do the same. There are plenty of great deals on hotels out there, so take advantage.

Make sure to catch up on World Cup action. Its fascinating to observe the different styles of the various sportscasters reporting on the matches. I find myself rooting for Mexico.

Above all, Happy Father's Day.

Who Is That Masked Man?

Bob Josefsberg is a Lion of the Bar. He has received every professional and civic accolade out there, and then some. He has been around a very long time, and done a lot of stuff.

For example, has he ever told you about his case where he helped Henry Flagler with a zoning glitch that affected the Royal Palm Hotel, mid construction? And that his bonus was to perform the first dance in the Hotel's Main Ballroom, with Julia Tuttle? Or how he circumcised The Yankee Clipper himself? Or that when The Lizard King took out his wanker at Dinner Key Auditorium, Bob was hired to defend the crooner? (Yeah, yeah: everyone has heard that last one.)

So its no wonder that "Super Lawyers" has chosen Bob to profile in this year's edition.

Titled "The Plain Talker," Stan Sinberg (no relation to Stan Lee) writes a tribute to Bob that is special, because he gets Bob to open up regarding his personal approach to his work.

Noting that he gets to pick and choose his cases, Bob shares:

"I like being on the correct side. I see myself as a white knight. Every so often when I leave the courtroom, I want people to whisper, "'Who was that Masked Man?’”

And Bob has reached that juncture in life where he thinks His Will, matters.

Being on “the correct side” means not always getting your client off scot-free on a technicality.

“I’m not going to place myself in a position to allow [a defendant] to continue to do wrong and to hurt themselves or others,” he says. “I’ve had cases where a young person could’ve won on a motion to suppress, but I told him I want him to get a sentence that requires he get treatment under probation.”

Which is so great, and quintessential grand-fatherly advise.

Only I have this nagging memory dating back to criminal procedure in law school, regarding an adversary system of criminal justice and a constitutional right to effective assistance of counsel. And, closer to home, I wonder how my client will feel when I advise it that, although it can acquire the land on which to build its hotel at a song, I think it would be better if it paid an additional 7 million for the land, because I think that is a fair price. Or that although I can obtain a permit for my client to build its even fresher kill landfill close to a residential area, I think its better if it outlayed more money to build the landfill somewhere else that presented less harm to people who live close.

Maybe I am splitting hairs, and heck, maybe Bob was misquoted.

One thing is for sure, Bob not only wants to be on the "correct side," but he want to instill those values in his family, too. And so you have to respect that. Right?

Thursday, June 17, 2010

On the Road With Spencer Aronfeld

The NYT takes a look at the Spencer Aronfeld Gulf Oil Spill traveling road show, with video:

Some lawyers are taking a lower-budget approach. For the past month, Spencer Aronfeld, a Miami lawyer, has posted a half-dozen YouTube videos chronicling his travels through the gulf to view the oil’s devastation – and presumably to sign up a few clients.

In the first video in the series, shot in the New Orleans airport, Mr. Aronfeld describes a “very emotional experience” he had while flying over the oil spill from Miami.

“We’ve rented a car, we’re going to drive down the coast, we’re going to roll up our sleeves, take our briefcases out, and find out how we can help people who depend on this environment, and to hold those people responsible who have caused this horrible, horrible disaster,” he says. In another, viewable above, he visits a Vietnamese shrimper thwarted by the spill who is hoping for alternative employment.

I'm not sure what to make of these videos, though they are somewhat compelling and provide a snapshot of what some people are experiencing in dealing with this disaster.

I'm less sure of the purpose of Spencer's "morning huddle" at his law offices, though it looks like a perfectly fine place to work -- which of course is why I have posted that video above.

Hi Madeline!

BTW, get Mayra's name right next time ok Spence?

In other news, I have to "unplug" for a few days to actually focus on my day job, but you all are in good hands with trusty, lusty Guest Blogger, who has kindly agreed to man the ship for a few days.

I should be back some time next week.

Play nice, kids!

Wednesday, June 16, 2010

3d DCA Watch -- Happy Bloom's Day!

In honor of everyone's favorite randy Jew from Dublin who met lots of people and did lots of things on this very day back in 1904, I have decided to write today's 3d DCA Watch in the style of the first epic, run-on, non-punctuated sentence from Episode 18, Molly Bloom's Soliloquy:

Telemundo v. Aequicap:

YES BECAUSE HE NEVER DID A THING LIKE THAT BEFORE AS ASK TO use his insurance policy but because you have to list the driver things got messed up the stupid policy says No coverage will apply to any driver newly placed in service after the policy begins until you report that driver to us and we advise you in writing that he/she is acceptable to us and that he/she is covered under the policy Coverage on any such driver newly placed in service will become effective as of the date and time we advise you he/she is acceptable and that they are covered by the policy and not before. . . . Only such drivers listed as the [sic] date of this policy begins, on the schedule in the original application signed by you, and not otherwise excluded are covered as of the date this policy begins with a couple of eggs since the City arms hotel when he used to be pretending to be laid up with a sick voice doing his highness to make himself interesting to that old faggot Mrs Riordan that he thought he had a great leg of and she never left us a farthing all for masses for herself and her soul greatest miser ever was actually afraid to lay out 4d for her methylated spirit telling me all her ailments she had too much old chat in her about politics and earthquakes and the end of the world let us have a bit of fun first God help the world if all the women were her sort down on bathing-suits and lownecks of course nobody wanted her to wear Where the language of an insurance policy is clear and unambiguous, “it must be construed to mean what it says and nothing more.” Gen. Sec. Ins. Co. v. Barrentine, 829 So. 2d 980, 981 (Fla. 1st DCA 2002). An insured’s “failure to comply with the requirements of the policy is fatal to his claim that the truck was insured” because “[c]ourts have no power to create insurance coverage, if it does not otherwise exist by the terms of the policy.” Id. at 981-82; see also Duncan Auto Realty, Ltd. v. Allstate Ins. Co., 754 So. 2d 863, 864-65 (Fla. 3d DCA 2000) (holding that “since courts have no power to create insurance coverage where none otherwise exists, . . . we must give this unambiguous contract of insurance its effect as written”) (citations omitted) I suppose she was pious because no man would look at her twice I hope I'll never be like her a wonder she didnt want us to cover our faces but she was a welleducated woman certainly and her gabby talk about Mr Riordan here and Mr Riordan there I suppose he was glad to get shut of her and her dog smelling my fur and always edging to get up under my petticoats especially then still I like that in him polite to old women like that and waiters and beggars too hes not proud out of nothing but not always if ever he got anything really serious the matter with him its much better for them go into a hospital where everything is clean but I suppose Id have to dring it into him for a month yes and then wed have a hospital nurse next thing on the carpet have him staying there till they throw him out or a nun maybe like the smutty photo he has shes as much a nun as Im not yes because theyre so weak and puling when theyre sick they want a woman to get well if his nose bleeds youd think it was.....

Oh hail, you get the picture.

Boy, art is hard.

Chinese Drywall Plaintiffs Testify

So I see that the representative plaintiffs in the Chinese Drywall trial have testified:
"We loved being there,'' said Armin Seifart, who works as senior counsel for Chevron. ``It turned into a nightmare.''
I have to assume Ervin and Victor know what they are doing, but does it strike anyone else as odd that the test plaintiffs they put up are wealthy professionals who purchased a $1.6 million home in Coconut Grove?

The husband is a senior in-house attorney at Chevron, which last I checked is AN OIL COMPANY, and the wife is a clinical psychologist.

These are the best victims to present to a Miami-Dade jury?

(Good thing I don't do this for a living.)

Tuesday, June 15, 2010

Conflict? What Conflict?

Julie Kay breaks the story of Akerman representing BP in the Gulf Oil disaster, a huge piece of business worth many millions of dollars.

But there's a little wrinkle:
State Sens. Alex Villalobos and Dan Gelber are taking the lead in calling for a special legislative session to ban offshore drilling in Florida waters.

Yet the two work for Akerman Senterfitt, the law firm that has been retained to handle BP’s oil spill defense work in Florida.

Villalobos and Gelber both said they don’t think there is a conflict in their dual roles as attorneys with the law firm defending BP in court. Two other state legislators at the firm, state Sen. Joe Negron and state Rep. Joe Gibbons — are also of counsel at Akerman.

Villalobos, who chairs the Senate rules committee and sits on the policy and steering committee on energy, environment and land use, wrote to Akerman chairman Andrew Smulian on behalf of the firm’s four legislators on May 24.

He requested that the four be “walled off” and isolated from any “discussions, documents or activities of any kind between the firm and BP.”

He noted the legislators’ “of counsel” status at the firm means they have no ownership stake or access to the firm’s financial records and do not share in firm profits.

“By serving in the ‘of counsel’ relationship, the legislators who are associated with the firm are not involved in any manner with this client nor do we have access to files or information relating to the firm’s representation of BP,” the letter stated.
The problem is that the state is preparing to sue BP.

This would mean that if Dan Gelber is elected Florida's Attorney General, he will be supervising a highly significant piece of litigation against his own firm (or possibly former firm).

Can a Chinese Wall (how anachronistic is that?) and "of counsel" relationship cure that issue?

(Both Dan and Dave Aronberg are buddies and both are immensely qualified btw.)

Schmaper/Paper -- It's Just A Foreclosure, Your Honor.

I love reading about judges who actually insist that foreclosure attorneys you know, provide the right paperwork and sue on behalf of the right client.

But who has time for that?

There are just so many homes to repossess:
It’s at least the second time in as many months that Circuit Judge J. Michael Traynor has dismissed with prejudice a foreclosure case where homeowners disputed who owns the mortgage.

Lawyers representing New York-based M&T Bank gave three separate accounts of the ownership, with documentation that kept changing, before Traynor tossed the case Friday.

“The court has been misled by the plaintiff from the beginning,” the judge wrote in his order.

He added that documents filed by M&T’s lawyers seemed to contradict each other and “have changed as needed to benefit the plaintiff.”

The latest account was that another bank, Wells Fargo, owned the note, and M&T was a servicer, a company paid to handle payments and responsibilities tied to a mortgage.

To believe that, the judge wrote, the “plaintiff is asking the court to ignore the documents filed in the first two complaints.” He added that Wells Fargo can still sue on its own, if it has evidence that it owns the mortgage.

Right, I'm pretty sure the judge is referring to the ancient equitable doctrine of "mend the schmeckle."

Uh oh, the judge isn't done yet:

Traynor has scheduled a hearing in August for lawyers from the Law Offices of Marshall C. Watson, a Fort Lauderdale-based firm, to explain the evidence they presented before deciding whether he should impose sanctions on either them or the bank.

Attorneys at the Watson firm referred questions to a supervising attorney who didn’t respond to messages left by phone and email.

Did you try carrier pigeon?

Well at least they have a clear explanation and a sound media strategy.

Monday, June 14, 2010

Magistrate Judge Brown Imposes "Audacious" $23k in Sanctions!

Audacious Order

Guess which case:
The audacity of plaintiffs continue to amaze. Plaintiffs need more time to do that which should have been done ages ago, and blame defendants for their inability to provide information on their damages!


Exclamation points are fun!!!

Where Are My Loyal Tipsters?

I'm really ticked off someone shared braless crusader Brittney Horstman's FDC tale of woe with Miami Herald reporter Jay Weaver instead of yours truly -- didn't any FACDL list-serve lawyer recognize it as perfect material for this blog?

Come on people!

Actually, the story is beyond stupid -- what is the point of these rules? They strike me as sexist and vague (no "clothing that is tight and sexually suggestive or revealing").

Has this restriction ever been enforced against a man?

Also, why subject any lawyers seeing clients to these rules? Aren't we officers of the court, like judges and CSOs? Have there been prior incidents that would justify making lawyers take off their bras when seeing their clients?

If so -- tell me more.

In other news, the Federalist Society will be meeting tomorrow at the Four Seasons, hosting former FEC commissioner Hans von Spakovsky.

I've been following Spakovsky's legal writings on NRO, which have been strictly doctrinaire, uninspired and exceedingly partisan (here he is recently bashing a career Justice Department appellate attorney for receiving a commendation even though she wound up losing an appeal).

But I had no idea of the extent of it before reading about his background on Slate.

Let's just say he seems completely fair and balanced.

In other news, Judge Donner apparently needs a better internet connection:
She took offense at DuPont attorneys, who claimed her access problems were not due to the depository itself but the quality of her Internet connection, the court’s computer firewall and anti-virus software.

Company attorney Bert Ocariz of Shook Hardy & Bacon in Miami said Donner would fare better if she tried from a different location.
Dude, I'm not sure that's the best way to handle that issue.

Did you also complain about her fax machine and tell her the courtroom A/C's not working so hot?


Friday, June 11, 2010

SFL Friday -- Bicycle Races Are Coming Your Way.

You know, I'm starting to tire of always writing about local lawyers and the law.

For one thing, it ain't easy making you guys seem interesting!

Take Krupnick Campbell lawyer Robert J. McKee, whose BP litigation roadshow was profiled today in the NYT:
Mr. McKee’s advice to the group — and it was just advice, because he had to stay on the proper side of the ethical line that bars solicitation of clients — was blunt. Should they decide to sue, he said, “You find someone competent who can kick their butt and take what is owed to you for full, fair and honest compensation.”
I'm all for kicking BP's butt, and what better way to do that than by exposing yours in an anti-BP nude bicycle protest.

Yep, you read that right.

I plan to be there -- in fact, I'll be wearing my vintage 1967 Elvis Presley striped terrycloth speedo with the solid gold buckle so take that, America's dependence on foreign oil!

But then you come across a story like this, and it just sorta makes it all worthwhile:

Marlins Ballpark isn't scheduled to open until April 2012, but that didn't stop season-ticket holder Herman Russomanno from touring his Diamond Club suite Thursday and checking out the field-level view directly behind home plate. The Miami attorney sat down in his cushioned, oversized seat and pronounced it ``very comfortable and spacious,'' then plunked down a deposit for four seats at $325 per seat per game.

Russomanno was the first visitor to the new Marlins Ballpark sales headquarters overlooking the construction site in the footprint of the old Orange Bowl in Little Havana. The 1,800-square-foot office at 1390 NW Seventh St. -- scheduled to open Tuesday by appointment -- features an exact replica of a premium suite, three-dimensional, wall-sized video and artists' renderings and a detailed scale model of the ballpark, complete with moving, retractable roof and miniature JumboTron.

So Herman's the very first visitor to a Derek Zoolander Center For Kids Who Can't Read Good And Wanna Learn To Do Other Stuff Good Too-styled mock up of his luxury "Diamond Club" box seat, and the Herald writes about it, and gosh darn it, that's precisely why this blog exists.

Thank you, Sir, and spend $1300 per home game in good health.

Before I take off to prepare for tomorrow's big ride, make sure not to piss anyone off, try to laugh more, and don't forget to watch Robert Klein's new HBO special this weekend.

(I'm serious about the last part).

Have a great weekend!

"I Shot the Scrivener"??

Scriveners Error

Ahh the perils of a scrivener's error.

Here somebody wasted a bunch of time and money on a summary judgment motion based entirely on a rog where the defendant -- excuse me, the defendant's scrivener -- apparently left out the word "not" when responding.

Judge Marra gets to the heart of it:
Plaintiff’s motion is based solely on Defendant’s answer to Plaintiff’s interrogatory. Immediately upon receiving Plaintiff’s motion for summary judgment, Defendant filed its amended answers to Plaintiff’s interrogatories, attempting to correct what it claims was a scrivener’s error which should have obviously read, “Defendant did not call Plaintiff on Easter Sunday at 9:30 pm.” (DE 12, Resp. to Plaintiff’s Mot. Ex. B.) Defendant also provided Plaintiff with a letter explaining that “[t]he [amendment to the answer] was necessitated by a scrivener’s error regarding interrogatory [number thirteen]. The word NOT was inadvertently omitted.” (Resp. Ex. D.) Defendant’s contention that the answer to interrogatory thirteen was a mistake is buttressed by Defendant’s repeated denials of Plaintiff’s claims that Defendant allegedly called at 7:00 a.m., 9:30 p.m., on Easter Sunday at 9:30 p.m., or at any other time that would violate the FDCPA or the FCCPA. (Resp. Ex. B, C.) Defendant’s answer to interrogatory number twelve is instructive as the question reads, “[w]hy did Defendant call Plaintiff at 7:00 am and 9:30 pm?” (Resp. Ex. B.) Defendant’s response states that “Defendant did not call Plaintiff at those times or at any times that would violate the call times restrictions imposed by the FDCPA or FCCPA.” Id. Further, in response to Plaintiff’s request for admissions, on or around November 19, 2009, Defendant unequivocally denied any requests to admit that calls were made at inappropriate times including on Easter Sunday. (Resp. Ex. C.)
Ok, this seems ridiculous or am I missing something here?

And yes, it is a slow news day.

The Clarifying Power of A Good Deal.

A deal is right.

A deal works.

A deal clarifies, cuts through, and captures the essence of the evolutionary spirit:
A Monroe County attorney assigned to prosecute Diaz Reus & Targ founder Michael Diaz Jr. in a road-rage incident has dropped all charges against the lawyer.

James Bracco and his girlfriend, who both accused Diaz of attacking them outside a Publix parking garage last December, refused to testify against the attorney after reaching an undisclosed civil agreement with him this week, prosecutors said.
A deal, for lack of a better word, is good.

Thursday, June 10, 2010

Judge Carnes Writes 66-Page Jurisdictional Snoozefest!

Ok, I just spent the last hour reading Judge Carne's recent prolix opinion on CAFA jurisdiction and what evidence is properly considered when evaluating jurisdiction on removal.

I had the following reaction:


I often wonder whether courts should be required to abide by the same page limitations lawyers are stuck with. How is it that you can come up with a 55 page opinion when the movant is limited to 30?

In this case the best part was Judge Carnes' introduction:
The plaintiffs entered into contracts to purchase units in Two City Plaza, a new high-rise building that offers ocean views and “cruise-like amenities” such as a Zen Garden, Moonlight Theatre, and a rooftop resort pool and steam room.
"Cruise-like amenities"?

You really want your condo to resemble a cruise ship?

Corpulent, underdressed chazzers feelin' hot hot hot in the hot tub as you struggle to maintain some dignity and find a modicum of peace and quiet?

No thanks.

Parsing the Rothstein Sentence.

David Brooks, typically a reductionist dodo who sees the world in two shades of binary, actually wrote an insightful column the other day on the virtues of the humanities and their application to the business world.

In particular, Brooks noted the power of analogies:
Studying the humanities will give you a wealth of analogies. People think by comparison — Iraq is either like Vietnam or Bosnia; your boss is like Narcissus or Solon. People who have a wealth of analogies in their minds can think more precisely than those with few analogies. If you go through college without reading Thucydides, Herodotus and Gibbon, you’ll have been cheated out of a great repertoire of comparisons.
I think there's some merit to this.

I put up a picture from Save the Tiger yesterday because I found echoes of Harry Stoner in Rothstein's letter and Nurik's presentation to the Court.

Save the Tiger is one of the better films to examine the tensions between business, morality, success, idealism, and manhood set amid the backdrop of the moral and ethical conflicts raging in America in the early 70s.

Harry Stoner, a WWII hero who helped liberate Italy at Anzio Beach, is an upwardly mobile garment manufacturer living the "American dream." Yet appearances are deceiving. His relationship with his wife is strained, his business is overextended and failing, and his reality is increasingly fractured by memories of his dead war buddies, the 1939 lineup of his treasured Dodgers, and glimpses of his idealistic youth, particularly his years playing baseball, drumming with a big band and listening to swing music.

The counterculture and the decaying values of Vietnam-era America meet Harry Stoner's sliding immorality head-on, as Harry is faced continually with business decisions that weaken him morally and challenge him ethically, until his fragile efforts at holding it all together rip apart at the seams.

Scott's self-described tale is similar -- from Hebrew school to playing guitar in high school to forming a firm with Stu to seventy lawyers, no business, and an ever-increasing and all-consuming Ponzi scheme, Scott faced the same choices lawyers and businessmen grapple with daily -- how to live a moral life and yet still achieve success, respect, and happiness.

Clearly Scott blew it. But like Harry Stoner, Scott's demise was the product of a million small decisions, each of them wrong.

Judge Cohn focused especially on forging judicial orders:
"He forged these court orders to perpetuate the Ponzi scheme,'' the judge said. "There can be no conduct more reviled than a lawyer perpetrating a fraud on the court.''
Actually, there is conduct more reviled that lawyers could engage in -- Scott could have killed someone, for example.

Is 50 years too much? Rump thinks so, and David says it will probably be less after the Rule 35 reduction hearing.

In order to answer that question, we need to know the point of the sentence.

Personally, I can't figure out the relationship between crime and the sentencing guidelines -- are they punitive, rehabilitative, preventative, arbitrary, or some mix of them all?

We sentence hundreds of thousands of people to lengthy sentences for distributing various forms of Soma -- does that make sense?

I'd like to think however long Scott spends in prison, he will have an opportunity to spend a portion of his remaining years outside of a prison cell, but I can't put my finger on why I think that.

Maybe Harry Stoner put it best -- "The government has a word for survival. It's called fraud."

Scott's going to learn survival first-hand.

Wednesday, June 9, 2010

3d DCA Watch -- The Sad Decline of the Economic Loss Rule.

I've written about this before, but there was a time a few decades ago when all anyone wanted to talk about was the Economic Loss Rule.

Could it apply here? Why doesn't it apply here? Let's have a lunch seminar and discuss it!

It was everywhere, the "metadata" or pesto wrap flatbread legal trend of its time.

But as the bunkerized Robed Ones remind us, ding dong the ELR is dead:
This “prohibition against tort actions to recover solely economic damages for those in contractual privity is designed to prevent parties to a contract from circumventing the allocation of losses set forth in the contract by bringing an action for economic loss in tort.” Indem. Ins. Co., 891 So. 2d at 536. Moreover, when discussing the exemptions to the economic loss rule, the Florida Supreme Court, citing Moransais as an example, stated that “[a]nother situation involves cases such as those alleging neglect in providing professional services, in which this Court has determined that public policy dictates that liability not be limited to the terms of the contract.” Indem. Ins. Co., 891 So. 2d at 537. In Moransais, the Florida Supreme Court tacitly acknowledged that an extra-contractual remedy against a negligent professional is necessary because contractual remedies in such a situation may be inadequate. Moransais, 744 So. 2d at 983 (“While the parties to a contract to provide a product may be able to protect themselves through contractual remedies, we do not believe the same may be necessarily true when professional services are sought and provided.”). 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.
Ahh Moransais -- it's been a while, welcome back my dear friend. Come sit next to my pal Venetian Salami.

But I guess my question is why?

What is it about professional services contracts in particular such that public policy compels -- in all circumstances -- that there be extra contractual remedies available in addition to those agreed to by the parties (or in Judge Shepherd's words, the "ancient concepts of freedom of contract")?

In other words, the court is not allowed to pay any attention to the circumstances of the contract formation or its terms, which typically can provide an equitable basis for extra contractual relief -- unequal bargaining power, obscure or buried terms, terms of adhesion, unconscionable terms, whether the parties are sophisticated etc.

Apparently all of the usual equitable tools get thrown out the window where professional services are involved, and it's simply the case that extra contractual remedies are always available?

I've never been a fan of the ECL, but at least I'd like to understand the reasoning for the exceptions.

Perhaps another way of looking at it is why shouldn't this exception extend beyond the professional service setting if there are compelling equitable grounds?