Thursday, September 30, 2010

First Rothstein Exposé Published!

It was only a matter of time before the first salacious, tell-all Scott Rothstein exposé came out, and here it is:
You get a flavor of the Rothstein persona, the atmosphere of excess somehow hovering at the fringe of lawyerly respectability. Various politicians, local, statewide and federal, march across the stage with one hand slapping Scott Rothstein on the back and the other hand reaching into his larcenous pocket. There is enough comedy and tragedy here for a lifetime.
Oh boy, this is going to be a bestseller!

But wait, what's this:

But Sakowitz will not leave this story to wallow in the realm of sensationalism. He keeps making us look through the moral viewfinder to see the character of the players. How the manipulator manipulates, how the manipulated are manipulated. We do not get to walk away feeling superior to this den of thieves, this band of buffoons. We cannot tsk-tsk our way through, disapproving of evil and disdainful of naivete. We have to look inside ourselves and see just how clean we are, just how open our own eyes are ... or not.

Moral introspection, in South Florida?

Forget everything I just said.

In other news, Magistrate Judge Brown has acceded to Joe Klock's demands that the foot-tapping lawyer hearing be rescheduled to accomodate some muckety-muck Article III federal judge (Gold) and his Court-ordered high-level Obama Cabinet flunky (personally, I'm hoping for Panetta!).  The hearing is now scheduled for October 18.

I would Scribd the Order but it is exceedingly boring and -- dare I say it -- lacking in all the tantalizing, over-the-top elements that make this case so deliciously enjoyable for those of us who have absolutely no involvement with it whatsoever.

Could it be a certain judicially-oriented FSU fan is on to us?

Mitch Widom, Plaintiff's Lawyer?

I meant to say Mitch Widom, Plaintiff's Lawyer!

That's the takeaway for me from this Julie Kay article examining all the Florida lawyers who have applied for leadership roles in the BP Oil litigation:
Grossman is seeking a position as co-lead counsel for the state of Florida with Widom. The Grossman-Bilzin team already represents the Florida Keys stone crab industry. 
I like that -- the "Grossman-Bilzin team" -- good luck, you crazy knuckleheads!

(PS -- AAJ membership available here)

I kid, but these guys are highly qualified, as evidenced by Big Stu and Big Mitch's application for leadership here.

But you boys better hurry, because the 2010-11 Supreme Court term isn't looking too good for plaintiffs at the moment.

Darn you/bless you, Chamber of Commerce!

Wednesday, September 29, 2010

3d DCA Watch -- They Write Letters, Judicial Edition

Hi kids, the bunker is stirring because it's mail day, and the Resplendently Robed Ones have received written greetings and salutations from the Judicial Sultan who will soon preside over the alleged 1st DCA "Taj Mahal":
Chief Justice Paul Hawkes of Florida’s 1st District Court of Appeals issued a seven-page letter Monday to newspaper editors around the state, responding to the flurry of criticism that has been leveled against the court’s new $48 million home in the state’s capital.
Oh Lord, this can't be good.  Whose idea was this?
The fact that the letter was written on official 1st DCA letterhead, which includes the names of all 15 judges associated with the building, was criticized by fellow judge Peter Webster, who contacted Hawkes directly before the letter was published...
Ok, so far it's going exactly as I would expect it to.

Let's see what the good judge is complaining about:
The courthouse project was not the result of a “backroom deal,” but was the result of an approval process that spanned from 2005 to 2008, and included at least one public committee meeting. Hawkes acknowledges that the bulk of the funding, some $33.5 million in bonds, was approved on the morning of the last day of the 2007 legislative session as a last-minute amendment to a transportation bill, but notes that the decision to bond the construction of the building had been made earlier in the year and as such should not have been a surprise.
"[A]t least one public committee meeting"?

I'm convinced!

What about those 60-inch flat screens in every office:
the televisions are actually monitors for the viewing of court procedures and documents. No cable/satellite connections are included in the construction plans.
Exactly -- I mean, how did judges even view documents before the advent of flat-screen technology?  On their clunky rear-projection TVs?  How mid-80s!

(In fact, our own industrious, inventive judges don't require any high technology --they regularly stage elaborate, fully-costumed re-enactments of key portions of depositions as well as have documents delivered to chambers via a contraption made entirely from bamboo and coconuts).

Also, smart to stay away from basic cable or satellite -- Uverse is the wave of future.

Here's the best part about our letter-writing, new courthouse-defending Chief Judge:
In a recent Florida Bar poll, Hawkes received the lowest rating ever given an appellate court judge up for merit retention.
How the hail did that happen?

Moving on to our own, flat-screen empty coffee-swillers, should we even bother with any cases this week?

Here, the parties’ Arbitration Agreement states that it encompasses all issues “with respect to the allegations in the complaint.” The American Heritage Dictionary defines “respect” with the synonym “regard.” “Regard” is defined as “concerning or with respect to.”
Hmm, I wonder how that dictionary defines "tautology"?

Finally, word on the street (and by that I mean the turnpike directly in front of the courthouse) is that the short list going to the Governor for the next appointment to the 3d DCA includes Kevin Emas, Ivan Fernandez, and a Key West lawyer named -- seriously -- "Scales."

(I'm not sure if that's his first name, last name, or maybe just what everybody calls him down there when he walks in for a beer?)

Judge Seitz Strikes Defendant's Pleadings And Other News.

Order Striking Pleadings

Hi kids, I guess what I love best about South Florida is the lovely weather!

Well, that and Glenn Garvin.

And while we all know Garvin lives in the past, who knew it was way back in the 1930s:

A packed courtroom watched as defense attorneys Bruce Lehr and Roberto Pertierra acted as Capone’s trusted two-man team, originally former Broward Circuit Judge Vincent C. Giblin and J. Fritz Gordon.

On the other side were Miami-Dade prosecutors Charlie Johnson and Howard Rosen, acting as County Solicitor G.E. McCaskill and Special Assistant County Solicitor Richard H. Hunt.

The jury, which included Miami Herald columnist Glenn Garvin and Daily Business Review executive editor Eddie Dominguez, listened as the attorneys presented their cases, mostly improvised.
"Mostly improvised," huh -- just like Glenn's columns!

Kudos all around, what a great idea and a fine way of marking the Court's centennial.

In other news, Julie Kay does a nice curtain-raiser on the Potamkin divorce battle, which pits A.J. Barranco and Barry Wayne against Maurice Kutner and Cynthia Greene.

Finally, Judge Seitz strikes a defendant's pleadings in a hotly contested family business dispute in which the defendant allegedly hacked the plaintiff's email files.

The Order is posted above.

Stay dry folks!

Tuesday, September 28, 2010

George L. Metcalfe Has At Least One Big Supporter!

You know we love George L. Metcalfe in all his many forms, including his exciting entrance into politics.

Now it looks like he is guaranteed at least one sure vote:

One look at Daniel Webster's website told me everything I need to know about who to vote for in the Congressional District 8 election.

Webster, it seems, is endorsed by the Bush family — the very same Bush family that gave us record deficits and back-to-back years of conservative defeats, ushering in Barack Obama and the Nancy Pelosi Congress.

If there is anything that the conservative movement doesn't need, it's more Bush cronies in office.

Thankfully, the people of Florida's 8th District have a real conservative to vote for, and his name is George Metcalf. Metcalf is running as an independent, but he is the real conservative in this race.

Don't make the mistake of supporting the pseudo-conservative Bush Republicans ever again.

Ward Hegock

We couldn't agree more, Mr. Hugecock Hegock!

NYT Editorializes on 3d DCA Gay Adoption Ruling!

Citizens of Hootersville, that fancy-pants Fifth Avenue newspaper that Oliver reads has taken notice of Sam Drucker's weekly farm report, checkers tips, and wry, homespun judicial opinions:
A state appeals court in Florida toppled a monument to bigotry last week, declaring unconstitutional a 33-year-old state law that prohibited gay people from adopting children. The animus behind the ban is unmistakable. Its sponsor in the Florida State Senate, Curtis Peterson, declared in 1977 that its purpose was to send a message to the gay community that “we’re really tired of you” and “we wish you’d go back into the closet.”
See, nothing discriminatory there!

They even take notice of "Rentboy Rekers":
The state had nothing credible to offer to justify the adoption ban. It presented only two expert witnesses, noted Judge Gerald Cope Jr., who wrote the main opinion. One witness undercut the state’s case by saying adoption decisions should be made on a case-by-case basis. Opposing experts quickly discredited the state’s second witness, Dr. George Rekers, a Baptist minister and clinical psychologist (subsequently caught up in a sex scandal) whose pseudo-scientific research was laughable. 
 Listen, this is South Florida.

If you don't laugh at this stuff, what's the alternative?

Monday, September 27, 2010

BREAKING -- Buju Banton Mistrial!

Here it is kids:
A Florida judge has declared a mistrial for the Jamaican reggae star Buju Banton, who was accused of conspiring to buy cocaine from an undercover police officer last year. U.S. District Judge James Moody declared a mistrial after the 12-person jury sent him a second note on Monday saying they couldn't reach a verdict. They had been deliberating since Thursday afternoon after a four-day trial.
In other news, federal prosecutor Sean Cronin decides to go swimming in Boston. 


Battle Over Timing of Foot-Tapping Lawyer Evidentiary Hearing Rages On!

Foot Tapping Reply                                                              

First they came for the foot-tappers, and I did not speak out because I was not a foot-tapper.

Then they came for those of us scheduled to appear before Judge Gold in an important hearing involving the Everglades where a "Cabinet-level officer of the Obama Administration [must] be in attendance" (take that, Judge Brown!), and I did not speak out....well, I guess because I am not involved in that case.

Then they came for those "trying the matter in the media," and I was advised that "[a]ny wind in the sails of the story has been self-generated by the seriousness of the allegations" and I was like whoa, you're kidding me, what am I, chopped liver?

And I realized there no one was left to speak out for this crappy blog.

(with sincere apologies to Pastor Niemöller)

(oy, sorry nona!)

Saturday, September 25, 2010

Mykonos Owner Scores Big Defamation Verdict Against Maryland Paper!

We previously covered this case of alleged mistaken identity involving a Baltimore newspaper, a federal fugitive, and a different person with the same name who also happens to be the owner of Mykonos restaurant.

Well apparently after having the case transferred from Judge Gold to Judge Motz(!) in Maryland, the newspaper was unable to make this case go away quietly and they actually tried this thing before a jury.

Question -- how much money was spent having GT brief the venue motion?  To what end?  The newspaper was afraid of Judge Gold?  Did the newspaper mistakenly believe they would be held in higher regard by a jury of their readers (big mistake)?  Was it just to make Joel travel to Maryland all the time?

In any event, kudos to Joel and his client for scoring a decisive victory -- though it is a newspaper we're talking about, I hope they're collectable!

In other news, we received word from our friend and former DBR reporter Billy Shields -- famously immortalized by the Beatles in the opening line to "With a Little Help From My Friends" --- that he is doing well and currently on assignment in the Great White North.

That means of course Billy is now writing about things of intense interest to our Canuckian neighbors, such as walrus tusks, William Shatner, exactly how much gravy to place on french fries, and oh yeah -- Chris Leak?

Friday, September 24, 2010

SFL Friday -- Put a Fork In Me, I'm Done.

Actually had to spend the whole day working, but I promise to catch you all up tomorrow in a special Saturday edition of this here crappy blog thingy we call home.

Thanks for all the tips and links.

Have a great weekend!

Friday Morning Buju Banton Update.

Hmm, the jury is still out for Buju Banton:
 "It's hard to say what is going on in there," Markus said in reference to the deliberations among the jurors. "We just have to stay optimistic."
So true.

I liked this part:
In the meantime, Banton's supporters at the court late yesterday afternoon called on fans worldwide to pray that the jurors would return a not guilty verdict.

They have asked that fans read Psalms 23 and 27 in addition to offering up prayers.
Hey, were those in the jury instructions?

Thursday, September 23, 2010

Victor Diaz Is A "Disgruntled Taxpayer" And Other News.

Victor Diaz is many things.

Bright, handsome, impeccably groomed -- sure.

Hail of a trial lawyer -- of course.

Now add one I haven't heard before:
"I point out as a disgruntled taxpayer . . . the taxpayers will pay for the write off of those loans through the TARP process,'' Diaz said, referring to a federal bailout of major banks in 2008.
Victor continued, 
"I mean, take a look at my 1099s.  Does anyone know the latest on extending the Bush tax cuts?  Don't even get me started on the luxury tax.  Boy does this crap really hack me off!  Umm, where was I"?
It's ok Victor, I'm worried too.

In other news, Joel Perwin scores a big win before the Florida Supremes, reversing the 4th DCA on whether "lost profits" damages are subject to pre-judgment interest.

This seems like a no-brainer to me, but then again there's only a century of uninterrupted precedent on the issue (i.e., enough to get it screwed up in state court):
In order to resolve the conflict between these cases, this Court must do nothing more than reassert its established precedent. For the reasons expressed below, we conclude that this Court's precedent has remained unchanged for over one century, and that prejudgment interest is a matter of right under the prevailing “loss theory” of recovery for pecuniary damages, i.e., damages for economic or tangible losses.

"Future Generations Will Honor You For That."

I'm feeling a bit sappy this morning.

I'm proud of the 3d DCA for ruling correctly and quite reasonably yesterday.

In a well-written decision, the boys in the bunker have dramatically improved the lives of Florida children and future parents for generations to come  -- in innumerable, unknowable ways.

Appellate guru Barbara Green put it best, as she often does, in the Herald this morning (article apparently not online):
"It's really judges doing what judges are supposed to do.  They're not ruling from any agenda."
And what a great way for Judge Cope to end a superlative judicial career!

But what is the mystery over whether or not the opinion will be appealed?

Governor Crist, last I checked, is the head of our state government and he said "his administration will immediately cease enforcing the statute."

That seems pretty clear.

The DCF, under Crist's control, has said "the department will no longer enforce the ban."

That also seems pretty clear.

Bill McCollum, who had taxpayers fork over $120k to rentboy Doc Revers, is only counsel to DCF and accordingly has to follow the department's wishes, even if that will result in Big Bill finally doing something good for the state (albeit inadvertently).

So who else would have standing to appeal -- Anita Bryant?

When you think of it, we're in an interesting place regarding gay equality.

Despite public opinion shifting toward tolerance, legislative efforts to repeal DADT have failed miserably and the Defense of Marriage Act and Prop 8 remain on the books.

This has led courts to take up the slack, much as they did decades ago when there was little political will to desegregate schools or repeal anti-miscegenation laws:
The district court judges are reflecting an increasingly obvious shift in public opinion, said Andrew Koppelman, a professor of law at Northwestern University. “The gay rights movement has been a spectacularly successful movement for cultural change,” he said. “A few decades ago these people were cultural pariahs. It was taken for granted that gay people are mentally ill, contaminated and unclean. Now the cultural valence has flipped — it is that view of gay people which is itself stigmatized.”

As life-tenured appointees, judges can look beyond politics to posterity, Professor Koppelman said. “Right now it seems like a good bet that if you are friendly to gay rights claims,” he said, “future generations will honor you for that.”
Regardless of where you stand on this issue, given the history of civil rights movements generally, I would have to say that's a fair bet.

Wednesday, September 22, 2010

BREAKING -- 3d DCA Affirms Judge Lederman on Gay Adoption!

Thought you all would like to see this asap, since we've been waiting about 30 or so years for it.

The Court found no rational basis to deprive homosexuals -- categorically -- of the right to adopt, and found the good Doctor Rekers to be the outlier goofball everyone already assumes him to be.

Great concurrence by Judge Salter btw.

We Recommend........Nothing.

2010 Civil Rules Report                                                              

That seems to be the net result of the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure – a select group of hipster federal judges, various wonky academics, practitioners with time on their hands, and business groups  – which held a swanky conference last Spring to debate proposed changes to the Federal Rules of Civil Procedure.

There was much ado about electronic discovery, "metadata," anecdotal examples of discovery gone amok -- in other words, line up the usual suspects.

After all that effort, the committee has finally produced their interim report to Chief Justice Roberts.

Reading the report, I don't get any sense any big changes to the Rules are in the pipeline.  They seem to be taking a very neutral position, merely describing the bigger controversies without proposing any resolutions to them.

Perhaps that is a result of holding the conference at dreaded Duke.

Sheesh, how'd this blog get so procedural all of a sudden?

Tuesday, September 21, 2010

Judge Shepherd Brings Rationality and Proportion to Iqbal Debate!


Dedicated readers have long known I have a "flatbread/hatebread" relationship with Iqbal, which in my mind upset decades of perfectly good precedent, notice pleading, Conley, you know all that stuff you learned in civ pro, and substituted an amorphous, heavily discretionary "roll the dice" element to 12(b) motion practice.

(On the plus side, banks seem to dig it!)

That's why I nearly flipped my lid when an alert reader forwarded me this fabulous opinion by a panel that included Judge Shepherd applying Iqbal to allegations regarding a recurrent common law issue -- whether someone is an employee or independent contractor.

Indeed, at this point I was quite certain all the various mental constructs that have allowed to me to compartmentalize a host of thoughts, feelings, memories, and random bits of useless knowledge all had simply broken down, leaving a raging river of jumbled inchoate images -- repeated viewings of Hogan's Heroes, the starting roster of the 73 Dolphins, where to get a decent egg cream in NYC, the final chord to "Day in a Life," how to prepare a statement of material facts not in dispute, Demi Moore crashing the wedding in No Small Affair, that great first line from Kafka's The Trial ("Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested."), that tentative first kiss behind the shed during P.E.

But then I noticed it was a different Judge Shepherd (actually, it's the 8th Circuit), and the mental walls and dams went back up and everything sort of slowly faded back to "normal."

Still, I love the simple reasoning and logic of the opinion -- if the form negligence complaint appended to the Rules "suffice" as per Rule 84, then the allegations therein must suffice under Rule 8(a)(2):
We conclude that, to answer this question, we need look no further than Rule 84 of the Federal Rules of Civil Procedure, which provides, "The forms in the Appendix [to the Rules] suffice under these rules. . . ." The rules referred to obviously include Rule 8(a)(2). The Appendix includes Forms 11-13, which set forth prototypes of various negligence complaints. Form 13, entitled "Complaint for Negligence Under the Federal Employers' Liability Act," includes the following allegation: "4. During this work, the defendant, as the employer, negligently put the plaintiff to work. . . ." (Emphasis added.) The district court considered Form 13 irrelevant because it applies to F.E.L.A. claims by railroad workers. But that overlooks Form 13's broader significance. As incorporated by Rule 84, Form 13 makes clear that an allegation in any negligence claim that the defendant acted as plaintiff's "employer" satisfies Rule 8(a)(2)'s notice pleading requirement for this element. Here, consistent with Form 13, Hamilton alleged that he was "employed" by the Palms. Rule 84 and Form 13 may only be amended "by the process of amending the Federal Rules, and not by judicial interpretation." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (quotation omitted), distinguished in Twombly, 550 U.S. at 569-70. Therefore, the district court erred in concluding that Hamilton's allegation of employee status, however facially conclusory it might appear to be in the abstract, failed to satisfy Rule 8(a)(2).
Ha ha, your move Justice Roberts!

Pro Hac Admission Throw Down!

 Order on Pro Hac                                                              

Ever get so pissed off over how big a jerk your opponent is being that you feel like moving to pull her pro hac?

I've researched this a few times but never actually pulled the trigger.

Well my buddy and intertubular lawyer extraordinaire Marc Randazza did, in the MD FL, when he allegedly found evidence of a purported misrepresentation on the pro hac form of his MI opposing counsel and also evidence that the "local" attorney sponsoring the pro hac was allegedly just a snowbird with a vacation home on the Gulf Coast.

Courtesy of Scribd, Randazza's motion to revoke the pro hac is here.

I liked this part:
Opposing a fellow attorney’s admission to practice pro hac vice is not an undertaking that is entered into lightly by any of the attorneys who have signed this Motion. In fact, none have ever done so, and all conferred at great length with respect to the propriety and necessity of doing so. The unfortunate and distasteful conclusion was that the undersigned were not only within their rights to bring this Motion, but that the Rules of Professional Responsibility compelled them to do so.
The Court wound up not revoking the pro hac, but did in fact conclude that the "local" attorney -- a FL Bar member btw -- was not a "resident" for purposes of the MD FL local rule:
The Court finds that there is no basis to revoke Mr. Sprinkle’s pro hac vice admission. However, the Court admonishes Mr. Sprinkle for his lack of candor in failing to disclose the Grievance Commission Request for Investigation filed against him. Moreover, Mr. Sprinkle chose as local counsel, an attorney who is not “resident in Florida,” Ernest I. Gifford, but has his primary residence in Michigan. Mr. Gifford is not a Florida resident within the meaning of the Local Rule and therefore cannot serve as local counsel for Mr. Sprinkle’s appearances in this Court. The fact that “Mr. Gifford considers himself to have dual residency in Florida and Michigan” does not make him a resident of Florida, when the main office of his law firm remains in Michigan, he votes in Michigan, and does not have a homestead in Florida. See Doc. 29. Mr. Gifford is not qualified to serve as local counsel in this case.
Oh well, at the least the case is getting off on the right foot!

Parsing the Shaquille O' Neal Hacking Lawsuit.

Have you looked at this facata lawsuit filed in Miami-Dade circuit court against Shaquille O'Neal?

I don't know "aggressive criminal defense lawyer" Menachem M. Mayberg, but he's got an uphill battle in front of him to establish a Florida RICO count based on those allegations.

Not surprisingly, Shaq's attorney Ben Reid thinks so too:
"The Complaint's rambling, unsupported allegations, through which Darling alleges that he possesses substantial knowledge that would harm the Defendant both in a separate and unrelated lawsuit, as well as in the public eye at large, render Darling's nefarious motive clear."
Ok oh bearded one, but that's a bit clunky.

Let's try again:
"Even if everything he was saying were true, we believe there is no basis in the law to bring the case," Reid told CNN Thursday. "But in this case, none of it's true."
Alright, that's a little better.

BTW, Is it just me or is nearly every lawsuit filed or threatened against a celebrity nowadays met with charges of extortion?

Monday, September 20, 2010

Five Neat Guys Reunion!

If you watched SCTV back in the day, you may recall their classic skit "Five Neat Guys."

Well, I'm happy to see the boys reunite (possibly in Scotland I can't quite tell).

Well done, fellas!

Buju Banton Trial Day!

Buju Jury Instructions                                                              

Our friendly neighborhood federal blogger goes to trial this morning in Tampa on behalf of Jamaican reggae artist Buju Banton.

This being the 21st Century, of course there's a FB page:
His fans have launched a letter-writing campaign against his prosecution and plan a rally outside the courthouse when he goes on trial today.

There are also Facebook pages, websites and T-shirts in support of Buju Banton, a four-time, Grammy-nominated reggae musician facing federal drug charges in a case his lawyer says was entrapment.

More than 100 people have responded to a Facebook invitation posted by Tampa area supportersto rally outside the federal courthouse on North Florida Avenue.

"I'm sure there's going to be a lot of people showing up," said fan Kay Bonacci, 58, of Largo. "This is a big thing. This isn't just America. This is all over the world."
Because I'm a wonk, I checked out the voir dire and proposed jury instructions just to see how they were framed.

And indeed you can get a good sense of where David is going with the defense from the proposed jury instructions, which deal with nice things like entrapment, testimony of co-defendant with plea agreement, and other instructions civil lawyers rarely encounter.

Friday, September 17, 2010

SFL Friday -- What Could Possibly Go Wrong?

In two significant opinions, the 11th Circuit has affirmed Judges Seitz and Ungaro in cases brought by the Miccosukee Indians to stop the construction of a bridge to replace a portion of Tamiami Trail ostensibly to increase water flow to the dying River of Grass.

The primary opinion, by Judge Wilson, provides a comprehensive 12-page history of the Tribe and South Florida's relationship with, and distortion of, the existing glades into what we know it today.

The bottom line of these opinions is that Congress, in a spending act, managed to include language that partially repealed the environmental laws that the Tribe was invoking, thus depriving the district courts of subject matter jurisdiction to hear the Tribe's claims:
The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress’s clear intent.
 So I guess this means war is the only option?

Not being fully immersed in this issue (Eye on Miami covers this extensively), it's hard for me to assess whether or not this is a "victory" for Everglades restoration, in part because the Army Corp of Engineers doesn't always know best.

It's Friday so I don't know about you, but I'm cutting out early to delight in what's left of our easterly water flow.

Before I go take note that this Assistant AG is a d$%k, women are good for you, and I agree with Conan -- "Yom Kippur has become way too commercial."

Have a great weekend!

Are You Experienced?

RIP Jimi.

They Write Letters, Old Judges Edition.

What do cranky retired federal judges do for fun?

They write letters denouncing the judicial appointment crisis, of course:
But the use of secret holds and filibusters undermine the credibility of the judiciary and, by contributing to lengthy vacancies on the courts, impede the courts’ ability to ensure that cases can be heard and adjudicated in a timely fashion. At this moment, our courts are overburdened and increasingly certain vacancies are being designated as “emergencies” by the Administrative Office of the Courts because of the length of time the court has been without a judge. This situation is untenable for a country that believes in rule of law.
"Rule of law" -- how deliciously quaint.

Given the myriad and pressing problems facing our nation, to say there is an "enthusiasm gap" among the electorate regarding judicial nominations is an understatement.

But we're grown-ups.

We're supposed to help focus attention on things that matter, and by that I mean Koran-burning nutjobs and enforcing "no-Mosque" zones in culturally significant spots like Murfreesboro, Tennessee.

The sad irony is, as Dahlia Lithwick noted recently in Slate, that the issue is truly bipartisan:
Whether you support Obama's legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.
I know I know, Bork payback trumps all.......

Thursday, September 16, 2010

New Motion To Recuse Judge Olson And Motion to Disqualify Ruden Filed.

The defendants who sought to recuse Bankruptcy Judge Olson have filed a second motion to recuse.  They have also moved to disqualify Ruden McClosky and are seeking discovery on the circumstances of the judge's fiancé/spouse moving from Orlando to South Florida to go live with the Judge.

Thanks to the miracle of Scribd, you can read the second motion for recusal here, and the motion to disqualify is here.

Shekels, Schmekels, and Rush Limbaugh?

"Who died and made Spencer Aronfeld King Dick of Wang Mountain"?

That's ATL on the case of the accidentally circumcised penis, prominently featured in the Herald today.

I love the pic of Spencer holding the little tyke, though I preferred the outtake where Spence is actually breastfeeding the kid.

Now that's client care I can really get behind!

All kidding aside, given that the hospital has basically conceded liability, this looks like a good case.

But what is the measure of damages, and how do you calculate them?

I also like the way Spencer sidesteps his own views on circumcision:
Aronfeld, who spoke on the topic of circumcision at the annual conference of the National Center for Victims of Crime in New Orleans on Tuesday, said he is trying to not to express his own opinion on the procedure.

But he added: ``So many people are opposed to circumcision,'' he said. ``I think there's a groundswell here.''
 A "surge," if you will.

A veritable "eruption" of emotion.

Ok, let's move on......

They are handing out shekels at GrayRob:
In commemoration of the firm’s 40th anniversary and an outstanding year, the firm gave each of its 150 shareholders and of counsel attorneys platinum coins at its annual meeting in Orlando last month.
Bestowing pricey coins has become a tradition at GrayRobinson.
Attorneys received one-ounce gold coins worth $1,100 last year. For the firm’s 25th anniversary in 1995, attorneys received a block of silver worth $2,000. This year the platinum coins are worth $1,500.
Some attorneys engraved the silver and framed the gold coins. Others have cashed them in.
Sorry kids, this is lame.

Obviously an old fart partner dreamed this up a long time ago, his sycophants said this is a marvelous idea(!), and now twenty years later some poor administrator is stuck wasting valuable time finding trinkets to hand out at partner meetings.

Nothing screams success like excess!

Finally, there is this:

Mr. Limbaugh spent some time profiling Judge Vinson, a senior judge on the Federal District Court in Pensacola, who had just announced he would allow a legal challenge to the new health care law to advance to a full hearing. The conservative radio host informed his listeners that the judge was an avid hunter and amateur taxidermist who once killed three brown bears and mounted their heads over his courtroom door to “instill the fear of God into the accused.”

“This,” Mr. Limbaugh said, “would not be good news” for liberal supporters of the health law.

But, in fact, Judge Vinson has never shot anything other than a water moccasin (last Saturday, at his weekend cabin), is not a taxidermist and, as president of the American Camellia Society, is far more familiar with Camellia reticulata than with Ursus arctos.

Apparently, Mr. Limbaugh had fallen prey to an Internet hoax.

False information on the intertubes??

I've appeared a handful of times before Judge Vinson.

Like many judges north of the border, he is a bit quirky, independent, and runs his courtroom in a strict yet collegial manner.  He asks plenty of questions and tells you exactly what's on his mind.  He tends to write short, common-sense orders.

He's always been fair, and he seems to have a strong sense of justice from my limited experience with him.

In other words, he's not exactly Rush's kind of judge.

Wednesday, September 15, 2010

3d DCA Watch -- And Hijinks Ensued!

The sun is shining, the coffee is swilling, the robes are a-wearing, and the opinions are as fresh as a nice sliced tongue on rye, so let's dig right in to this week's 3d DCA Watch:

Ruscalleda v. HSBC Bank:

How cute -- two banks foreclosing on the very same mortgage!

This is like that episode from Three's Company where Jack has to entertain two dates at the very same time, all at the Regal Beagle:
After filing their pro se answer and affirmative defenses, the defendants retained counsel. Continuing in their mistaken belief, they did not inform their attorney of the action filed by HSBC. On November 13, 2008, counsel filed an amended answer and affirmative defenses on behalf of the defendants in the American Home Mortgage action, but took no action on the HSBC complaint.

Although the defendants did not file an answer in response to HSBC’s complaint, HSBC never moved for a default judgment.3 Instead, on January 22, 2009, HSBC moved for summary judgment, scheduling the hearing for March 24, 2009. When the defendants received the motion for summary judgment in the HSBC action, it sent the motion to their counsel. It was at that point, that the defendants and their counsel realized that two separate banks were attempting to simultaneously foreclose on the same mortgage, but that they only had been defending the initial action filed by American Home Mortgage.
Ok, it's like that episode except John Ruiz had no idea he was on another date.

Sunshine Guardrail v. FL Unemployment Commission:

Shorter Judge Schwartz -- "Several zeros are still zero."

How funny -- I got that exact fortune at New Chinatown the other night.

Commercial Jet v. U.S. Bank:

Speaking of Judge Schwartz, here's a carefully measured dissent from him on statutory construction:
The majority holding that following that provision did not have the effect specifically provided by the legislature is in conflict with just about every canon of legislative interpretation there is, including: that statutory words must be accorded their plain meaning; that every statute must be deemed to have some meaning and accomplish something (here, the court’s ruling renders the filing of the lien of no effect whatever); that a statute dealing with a specific subject, such as aircraft, must be deemed to control over a general one such as section 713.58, which applies to all personal property, and no doubt other general rules which no one has thought it necessary to devise—until now.
Wow -- that's a 114-word sentence!

I don't know about you, but he had me at word 52.

Glenn Garvin, Comic Genius!

Did the Herald fire all their editors?

Or maybe the right question is -- has Glenn Garvin ever had an editor?

I ask because, inexplicably, Garvin has dusted off his old stand up routine, circa 1957:
Q. What do lawyers and sperm have in common? A. One in 50,000,000 has a chance of becoming a human being. The second is that it made me remember this joke: Q. How do you stop a lawyer from drowning? A. Take your foot off his head.

Now that I've not only remembered the jokes but also written them down in a convenient clip-to-the fridge form, though, I can imagine no conceivable rationale......
It goes downhill from there, if that's even possible.

Let me say this -- as a stand up, Garvin is a great political commentator.

How about that airline food?

Boy, the traffic in LA is horrible!

Tuesday, September 14, 2010

Judge Seitz Provides Counsel With "Teachable Moments."

Efficiency is Just Another Word                                                              
I happened to catch the Herald's review of Kendall Coffey's new book, and it looked pretty interesting so I picked up a copy.

I must say I found some of the text quite stimulating:
"Suddenly the pouting sex kitten gave way to Diana the Huntress. She rolled onto him and was somehow sitting athwart his chest, her knees pinning his shoulders. 'Tell me, or I will make you do terrible things,' she hissed."
Hey now!

Oh wait wait, my apologies.

That's not from Kendall's book, it's actually from a book by Newt Gingrich!


(This is what happens when you keep a few books going at one time.)

Sorry about that -- Kendall, your book is plenty stimulating too!

On to Judge Seitz -- here are a few choice snippets from the Judge regarding the plaintiff's motion to amend that I think offer guidance to all of us:
Moreover, ATT's case management approach thus far frankly guarantees that the proposed amendments or supplementations will unnecessarily delay the resolution of this case....

...ATT has not demonstrated that it has diligently undertaken its responsibilities to prosecute this case...
Presumably ATT's counsel spoke with its experts prior to agreeing to this deadline. In any event, it demonstrates a lack of diligence to wait until the due date, August 13, to advise the Court that the survey would not be completed in time that ATT committed to for disclosure.
Nonetheless, ATT's attempt to resurrect the dismissed claims via the proposed supplementation is somewhat akin to engrafting a horse onto a horsefly - if it doesn't smother the fly it will certainly ensure that it never flies.

The Defendant should not have to outlay additional resources in defending this action because ATT has just come to market with a new product and its lawyers have, on the last day for amendments, divined an admittedly creative attempt to try to circumvent a dismissal with prejudice.

Before proposing such a fundamental expansion of this presently streamlined case, ATT would do well to consider its obligations of pre-suit due diligence as well as think through a realistic litigation management approach that achieves the promise of Rule 1 of the Federal Rules of Civil Procedure, namely that civil actions and proceedings be administered to secure the just, speedy and inexpensive determination of every action and proceeding.
 And here's my favorite:
While ATT asserts that it would be inefficient to have ATT, CSI and PowerWave litigate these issues in separate suits, other than the fact that both ATT and Digital are parties in this action, ATT has provided no support for its efficiency argument as it applies to this lawsuit, rather than in a separate lawsuit. Indeed, just looking at the timing of the motion to amend, and then the shift to treating it as a motion to supplement plus the lack of consideration as to how the proposal will impact on others involved in the administration of this case, suggests that efficiency is only a buzz-word that counsel has employed rather than an apt description of an habitual approach to litigation.

Exclusive -- Shocking Stuart Rosenfeldt Turtle Tape!

It's good to see South Florida lawyers, in these difficult economic times, not live up to the cliché of being overprivileged, self-absorbed lunkheads:

Bankruptcy attorneys for RRA say Rosenfeldt went hog wild on the firm’s credit card, compiling $1 million in purchases. He bought cars and jewelry, but he also bought exotic turtles, often spending $1,200 to $1,500 a shot at places like Underground Reptiles.

At a July 2 deposition with bankruptcy attorneys, Rosenfeldt said he still had five turtles and spent about $20,000 on reptiles.
To be clear, I'm not suggesting anything remotely close to this classic Wikipedia punk, but our crack team of legal misfits have in fact discovered shocking exclusive video to corroborate these unusual reptilian revelations.

It's quite endearing, actually.

Monday, September 13, 2010

Behold: Real Books, Legal Pads, and Actual Paper "Files"....Astonishing Relics of A Distant Age!

Watch this video with the sound turned off.

Welcome to the Depression, Gen-Y Lawyers!

Cindy Krisher Goodman has a nice run-down on young lawyers and how subservient and deprived they have to be, given that they are lucky to just have low paying jobs:
Because of these stark numbers, many of them realize that they cannot make demands for raises, promotions, time off, training, and the hottest technologies during a recession.
Cesar Alvarez, executive chairman of Miami law firm Greenberg Traurig L.L.P., which also has an office in Philadelphia, said he thought the recession was the wake-up call for these workers, much like other generations had defining events that changed their behavior.
"I think their concept of the ultimate safety net has shattered," he said. "I'm seeing them much more engaged. I think this was a tipping point that helped the new generation suit up for the game."
I agree with Cesar -- "raises, promotions, time off, training, and the hottest technologies" -- all wildly overrated luxuries.

I'd also add "pencils, coffee, Westlaw, parking passes, secretaries and anything after Windows 98."

Cindy also focuses on a representative "Gen-Yer" and new Miami lawyer Christina T. Blake:
  Christina Totfalusi Blake, a 29-year-old lawyer, feels lucky to have a job, particularly one that provides the attributes most Gen Y workers value: meaningful work, opportunities for learning, good quality of life, and likable colleagues.

Blake joined Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Eskaylo & Dunbrack P.A., of Miami Lakes, after working solo in Orlando for two years. She views her workplace as a social hub where collaboration has value.

"There's an open-door policy, so I can chat with other attorneys," she said. "For me, brainstorming, having senior associates to bounce ideas off, is huge. It's something I can't put a value on."

But Blake still wants the high salary and work-life balance. "Young attorneys are taking lower-paying jobs for the same long hours. But our hopes are still there, in light of our student loans and high debt, that compensation will go back up."
Aah, I remember when I was young and optimistic!

(Ok, I remember when I was young.....)

Regardless, welcome to Miami, Christina!

For you Supreme Court junkies, here's the story behind David's reference to the large number of Elena Kagan recusals this term, including a massive, history-laced Glenn Greenwald smackdown of SCOTUSblog's Tom Goldstein.

The intertubes are a b#@ch!

Friday, September 10, 2010

SFL Friday -- Strange Days Indeed.

John Lennon - Nobody Told Me
Uploaded by hushhush112. - Explore more music videos.

Call me old-fashioned or a teary-eyed sentimentalist, but I think the only appropriate way to honor the victims of 9/11 is for the Canes to crush OSU at the exact same moment some nutjob pastor burns a Muslim Koran, praised be the Lord amen.

When you think of it, nothing screams American Exceptionalism better than a violent ground acquisition game that is in fact a crypto-fascist metaphor for nuclear war.

Oh I kid football, I kid.

Will someone please get this poor girl her meds, ok?

And congrats to Arthur Furia for making the move to Shutts & Bowen.

(These two stories are not related btw -- well, I should say these two stories are not related to my knowledge.)

OY VEY ZMIR GIMEL DALED HAY -- Joe Klock needs to move the toe-tapping evidentiary hearing scheduled before Magistrate Judge Brown!

Read the motion here and pray for deliverance of our mortal souls, all courtesy of Scribd.

BTW, I am now fully prepared to revisit the utility of notices of unavailability in light of this extraordinary scheduling conflict.

Have a great weekend!

Judge Manno Schurr Faces Federal "Lawsuit"(?)

High Art Complaint                                                              

I've previously noted William S. Burroughs and his "cut-up technique," where you take a perfectly understandable linear text, cut it up into individual words or phrases, and then reassemble it all back together again into a new, wholly inexplicable and completely non-linear artistic expression.

Well that seems to have happened in this new federal lawsuit filed against Judge Manno Schurr.

I'm rarely this effusive, but let me be clear -- I believe these pro se litigants have lifted the mechanical, soul-sucking drudgery of preparing a complaint into the lofty realms of high art.

Indeed, these visionaries should be applauded for confronting and challenging the reader, and for daring to radically reimagine -- nay -- for quite literally unshackling us -- from the small-minded, restrictive and fundamentally bourgeois chains of Rule 8(a).

I'm fairly certain Judge King will see it the same way, don't you agree?

Thursday, September 9, 2010

Check Ignition and May God's Love Be With You.

"The Law has been our garden of delight; the Law has been our life.  In deepest darkness, we have held it fast; in the valley of tears, it has upheld us.  Therefore shall we learn this Law and reveal it to our children:  our truth, our way, our joy.  It makes us one, a single heart."

Wednesday, September 8, 2010

3d DCA Watch -- The Jews Are Restless Edition.

L'shana tova, kiddies!

God I miss Neil Rogers  (link goes to audio of classic "bridge tender" bit).

Don't you think he would have been all over this crazy story about the temple in Sunny Isles that wants to expand against the wishes of the city commissioners?

This rabbi is something else btw:
``Hitler tried to eradicate the Jewish nation,'' he added. ``As long as the synagogue keeps on going, we're defeating the Nazis. An action that is intended to minimize the growth, I calculate that as Nazism. . .
The biggest battle, however, was between the mayor and the rabbi.

Lankry refused to address the commission members in English and taunted, ``I forgot. I'm not in Germany,'' before launching into Yiddish.

``Do it in English, this is not a show,'' commanded Edelcup, a former member of the temple.

Well now the Resplendent Ones have weighed in, at least on an ex parte order to show cause that Keith Poliakoff got from Judge Donner that would have stopped the City from moving forward until the parties mediate:
The Temple argues that the order was not a temporary injunction because the underlying proceeding was a petition for a writ of mandamus and therefore the order “simply impose[d] a brief ‘stay’ on the proceedings” to “preserve the status quo.” However, “[t]he very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved. The Order in this case, by preserving the status quo . . . clearly constituted a temporary injunction.”
I agree.

I think it may have been too clever by half to go in on an order to show cause why a writ should not issue, as opposed to just seeking a TRO and attempting to satisfy that standard.

But what do I know -- it's state court, after all.

Happy Rosh Hashanah everybody!

Dear 11th Circuit: Someone Doesn't Like You!

We previously covered the 11th Circuit's most recent "boy" opinion back in late August, but for whatever reason the NYT has finally got around to it in a blistering piece by Adam Liptak:

Notwithstanding the nudge from the Supreme Court, a different panel of the 11th Circuit overturned the second verdict last month.
The judges had not seen the testimony and so had to infer “inflection” and “tone of voice” from a transcript. They probably knew less about “local custom and historical usage” than the jurors did. But the judges in the majority nonetheless ruled that “a reasonable jury could not have found” race discrimination.

The court went further, criticizing Mr. Hithon’s lawyers for eliciting testimony likening the word “boy” to the most charged of racial epithets, saying that their conduct had been “highly improper.”

But U. W. Clemon, who was a civil rights lawyer before becoming Alabama’s first black federal judge in 1980, said in an interview that the two terms had the same force.

Mr. Clemon, who resigned from the bench last year, said he had followed the Hithon case closely. He added that he knew something about the “local custom and historical usage” of the word “boy,” having grown up in the segregated South.

“It’s the same as calling him a nigger,” the retired judge said.

Stephen B. Bright, president of the Southern Center for Human Rights, said the Atlanta appeals court was an outlier among the federal appeals courts, one that is consistently hostile to suits from people claiming racial discrimination.

“There is no such thing as racial discrimination in employment in the 11th Circuit,” Mr. Bright said, adding that the court’s response to the Supreme Court’s ruling in the Hithon case amounted to “outright defiance.” 
Tapped takes it one step further, noting -- as others have -- the lack of diversity on our appellate bench:
More broadly, this puts further lie to the conservative claim that judges can be impartial "umpires" calling "balls and strikes" in their application of the law. The 11th Circuit Court is dominated by older white men of the South. Conservative hostility to claims of racial discrimination aside, is it really any surprise that the court failed to see the racial implications in calling an African American employee boy?
Again I think this criticism goes too far, but these are not the kind of national headlines you'd like to see generated for our (mostly) benign overlords in Atlanta.

All together now...
1... 2... 3...

Here we are
in Shangri-La...