Sunday, October 31, 2010

Parsing the Herald's Dismissive Coverage of Stewart/Colbert's Rally


Given that Stewart's satiric message has always been directed to the mainstream media and their failure to (1) hold the crazies accountable; and (2) raise the level of discourse without lapsing into clichéd "he said-she said" hackery or alarmist stupidity, it's no wonder the MSM has pushed back so hard on his rally yesterday.

A fine example of the dismissive nature of the mainstream coverage appears in today's Herald, courtesy of McClatchy News Service.

Here's the first thing that caught my eye -- dismissing or minimizing the number of people in attendance:
[A] pair of comedians drew tens of thousands to the National Mall on Saturday with a blend of jokes and music meant to counter some of the anger and fear they see in the country.
Got it -- "comedians," they just make jokes and throw spitballs.

Would it be that hard, given the context of this event, to at least describe them as the NYT does -- as "political satirists"?

"Tens of thousands" is technically correct yet highly misleading.   That makes me think maybe 40 to 50 thousand showed up.  For that matter it would be technically correct to say "tens of hundreds."

Yet, although estimates vary, there is no question a fairer description would be "hundreds of thousands."

Who you gonna believe, me or your lying eyes?

Here's the part that really annoyed me:
The smell of marijuana wafted through the air at one area of the mall.
How utterly gratuitous!

Gratuitous, unless you were trying to reinforce the Fox News/O'Reilly meme that Stewart's audience is merely a bunch of  "stoned slackers."

So, to summarize, perhaps thirty thousand stoners showed up to listen to music and watch comedians make jokes.

Friday, October 29, 2010

SFL Friday -- Russ Adler Deposition Follies!



The Intrepid One™  reports on Russ Adler's deposition, which went off about as smoothly as everything else in Rothstein-world:
Lichtman and Adler’s lawyer, Fred Haddad of Fort Lauderdale, stood and yelled at each other several times in the highly charged session. After Lichtman sarcastically questioned Adler’s assertions that he was a “premiere” lawyer in Broward County, Haddad threatened to have Adler leave the deposition if Lichtman did not treat Adler with respect. Later, Lichtman threatened to stop the deposition and get a protective order to force Adler to answer his questions.

“You’ve been argumentative with me all day,” Lichtman said. “I don’t want your speeches.”
 This may be my favorite part (by Jon Burstein in the Sun-Sentinel):
At times, Adler lashed out at Lichtman, accusing him of trying to trap him with "memory games" and telling the bankruptcy attorney: "I don't trust you. I don't believe you."

Adding a side element to the deposition was Adler's wife, Katie Adler, who repeatedly spoke up, much to the chagrin of Adler's attorney, Fred Haddad, who threatened to kick her out of the room.
Katie, I appreciate the sentiment, but let your man handle this, ok?

In other news eat lots of salt, charm may not be a positive personality trait, and it's always mind over matter.

I'm cutting out of downtown early as I understand they may be something happening here later, so happy windsurfing to all and have a great weekend!

11th Circuit to Judge Gold: Know Your Place.



The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.

On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).

On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.

But in a split decision, Executive trumps Judicial nanny nanny boo boo:
The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution
I'm having trouble with the first sentence --  "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."

I think it certainly can encroach on the separation of powers, but does it always do so by definition?

Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:
[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.
I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.

Finally, whatever happened to the mandamus standard of review?  That seems to have gone totally out the window here.

(I admit, I'm a standard of review junkie.)

As usual the barbed, bearded, cranky wondering Jew minstrel put it best:
"But even the president of the United States sometimes must have to stand naked ..."
Judge Gold got this right.

Thursday, October 28, 2010

Magistrate Judge Brown: Case "Totally and Completely Out of Control"!

Totally Out of Control Order                                                              

You know how when a big piece of litigation ends there is a feeling of loss, sometimes even a little remorse?

That's how I'm going to feel when this case ends, which apparently will be exactly March 18, 2011:
The Court finds that it must manage its calendar, and this case in particular as it has gotten totally and completely out of control.  To allow it to go unfettered will allow what this Court stated early on - "it's all about the journey, not the destination."
"Allow it to go unfettered"?

As in "if the disease is allowed to go unfettered the parasite will spread rapidly through the body, leading to paralysis, coma, and ultimately a slow, painful death."

(He probably meant "unfettered" in some other sense.)

Florida Supreme Court Weighing Hank Adorno Disbarment.



Did you know Hank Adorno is still a lawyer?

I didn't, but he may not be for long:
The court ordered Adorno to show cause by Nov. 16 why a suspension of up to three years or disbarment should not be imposed.

The Florida Bar had recommended a six-month suspension, but a referee who heard the ethics charges against Adorno recommended only a reprimand, the lightest possible punishment.
Adorno did not respond to a call for comment by deadline.

The court raised the issue of a suspension on its own, according to the two-page order written by Chief Justice Charles Canady.

The court ordered Adorno, the law firm president, to be suspended within 30 days so he can close out his law practice — or immediately if he is no longer practicing. The court also ordered him to accept no new clients, send a copy of the order to all existing clients and courts, stop withdrawing money from trust accounts without court approval and provide a copy of the suspension order to all banks he does business with.
 The Court was apparently not persuaded by the macher boys-club backslappers who rose in Hank's defense:
A parade of South Florida legal heavyweights pleaded on Adorno's behalf. His supporters included former Florida Supreme Court Justice Raoul Cantero, Sanford Bohrer, a partner at Holland & Knight, and Ruden McClosky founding partner Don McClosky.

Hold on a minute -- don't the Supremes know who these people are?

Wednesday, October 27, 2010

Trust Me, Dan Gelber Likes Jews!



It seems every lawyer I know has been sending me emails about this scurrilous attack by Karl Rove and Citizen United's unholy love child, the "Committee for Florida's Education Inc.," that alleges Dan Gelber -- a mensch by any measure and I can vouch for this personally -- is somehow anti-Semitic.

It's too bad Dan is a down-ticket candidate in an election where a bunch of yahoos are apparently going to get elected, but this latest attack is just simply beyond the pale.

Here's an excerpt from the attachment to the email making the rounds among lawyers on Dan's behalf:

If  this “Committee” were truly interested in providing access to Jewish education for needy children, they could have accomplished that with all the money it is spending to finance these defamatory pieces.  But, of course, the purpose of these flyers is not to ensure “access to Jewish education for needy children.”   They were bought with undisclosed, anonymous money in an effort to get Senator Gelber’s opponent, Pamela Bondi elected. 
Not true, Ms. Bondi?  Then renounce these despicable practices immediately.  The Attorney General is supposed to do justice.  To allow such lies to stand unchallenged while you reap their political benefit without absorbing their taint is unworthy of a person who would presume to lead our state’s highest law enforcement office.  Your deafening silence on this issue speaks poorly for your sense of justice and your candidacy.
The more worrisome issue is what do these big money GOP guys have in mind with Ms. Bondi?

We may have the unfortunate honor in this election cycle of catapulting two Palinesqe rock stars into national orbit.

But that's why we love our silly State!

3d DCA Watch -- "I Dissent."



Ho hum, another day another time traveler in drag talking on a cell phone in a 1928 Charlie Chaplin film.

Let's jump right into the bunker, shall we, we've got a full docket today:

Greenberg v. Schindler:

Judge Trawick gets it wrong on a slip and fall:
At trial, the court excluded evidence of various reports showing prior problems with the subject escalator, and denied Greenberg’s request for a jury instruction on negligence per se. Over Greenberg’s objection and motion for mistrial, the trial court permitted defense counsel to argue there was no evidence of prior problems with the escalator.

Dr. Gart, a doctor specializing in physical medicine, rehabilitation, and pain management, testified on behalf of Greenberg. Although he is not a surgeon, Dr. Gart opined that Greenberg would require back surgery in the future. However, the trial court did not allow Dr. Gart to give his opinion regarding future surgery because he was not a surgeon.
Yeah so, what's the problem?

Master Tech v. Mastec:

A contractor doesn't want to pay its sub for satellite dish installation because it "discovered" the sub is not a licensed electrician.

Judge Salter, however, finds something fishy in Mastec-land:
[T]his case is one in which a contractor (appellee, Mastec) attempts to take financial advantage of its own subcontractor (appellant, Satellite), requiring a particularly skeptical look at Mastec’s “discovery” that its own subcontractor lacks the allegedly-necessary electrician’s license. Mastec made no showing that it had either (a) reimbursed the consumers for the services performed by Satellite but paid for through DirecTV to Mastec (attaching satellite dishes to residences and apartments, and making service calls to help DirecTV customers operate or replace their satellite television recorders and receivers), or (b) sent a licensed electrician to those homes and apartments to be certain that the work done by Satellite conformed to the allegedly-applicable codes.
Licensed electrician?  Why should that matter -- it's Miami!

Pineda v. State Farm:

Judge Schwartz dissents from a "modest" award of attorney's fees in connection with an insurance appraisal under section 627.428:
....I believe that their attorneys’ alleged efforts in the Circuit Court were (a) entirely unnecessary and gratuitous (b) resulted in no practical benefit to the client, or (c) both. In these circumstances, I do not believe that they are entitled even to the “modest” – actually minimal or nominal – award which is contemplated by the majority.
You know what, I agree.  In fact I think these lawyers ought to pay State Farm after Hurricane Wilma wrecked their clients' home and then State Farm low-balled them by $80 grand.

United Auto v. Libman:

United Auto's suit against ubiquitous PIP attorney Michael Libman revived.

This one could be serious:
Prior to the underlying lawsuit, Libman had received monies from United Auto as part of several PIP lawsuits.1 Some time after the resolution of the PIP lawsuits, United Auto filed a new and separate lawsuit against Libman alleging that its own investigation revealed false billing for tasks performed by a nonlawyer medical billing company, Continental Providers’ Services (“Continental”), improper fee-splitting with Continental after payment, and false prosecution of several PIP lawsuits without authority from the putative plaintiffs. The trial court dismissed United Auto’s complaint with prejudice on grounds that it stemmed from the PIP lawsuits and, as such, had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements. United Auto appeals the dismissal of the counts for restitution and fraud. We reverse.
I wonder if a separate suit is the right format for these types of allegations.

If the fees were awarded in a prior case, and they were allegedly improper, shouldn't you have to go back and ask that court to vacate that fee order?

Olimpia v. Preferred Care:

Judge Shepherd is his usual eloquent self in this well-reasoned and persuasive dissent, the entirety of which appears below:
SHEPHERD, J., dissenting.

I dissent.
(Note to 3d DCA webmaster -- maybe the tubes ate the good Judge's opinion?)

Bob Marley's Son Stephen Rescues Buju Banton!



Our favorite federal blogger is having a hearing today over which private security detail is acceptable for Buju Banton.  I guess the AUSA is objecting to any company that does not employ off-duty law enforcement officers.  I Scribd the motion here.

This strikes me as highly stupid, and I hope the issue gets resolved quickly.

The more interesting thing (to me anyways) is that Bob Marley's son Stephen(!) has put up his Miami-Dade house as collateral for Buju's bond:
Mr. Myrie hereby notifies the Court that Stephen Marley, well-known entertainer and son of Bob Marley, and his wife Kertia DeCosta Marley, are willing to substitute as the signator for the bond in lieu of Mr. Chavalier. His property is located in Miami-Dade county and has an approximate equity of $350,000. As evidence, Mr. Myrie will provide the Court with a recent appraisal of the residence, a title search, a copy of deed and mortgages, outstanding mortgage balances, and affidavits from Mr. Marley and his wife. AUSA Preston objects.
 The AUSA objects to this too?

I'm glad I don't do that for a living.

Tuesday, October 26, 2010

Miami Herald: Less Is More.



So the Miami Herald decided to scrap the business section and collapse it as an occasional part of the already-dwindling local section, thereby continuing the reductions in coverage, staffing and resources that have plagued the Herald specifically and the newspaper business as a whole for at least a decade.

That's fine if economic necessity requires it.

But why try to put lipstick on a pig (remember that insanely asinine fake media controversy from 2008)?

Just look at the facacta way the Herald describes what is a pretty simple concept -- we're eliminating the business section entirely and collapsing a piece of it into the local section twice a week, without adding any pages to the newly combined local/business section:
Here's how to find business news:  Flip the B section over.  The Business section front you're accustomed to appears on the back, and stories jump back into the B section.  Stock tables appear intact on the inside back page.
What late night bunch of potheads dreamed this one up?

(OK Garvin, fess up!)

This is the other method they suggest:
Here's the other way to find business news:  grab a pair of gravity boots.  Hanging upside down, turn to the "back" of the B section.  DO NOT FLIP THE B SECTION OVER.  This is now the "front" of the Business section.  As blood drains to your head, you will slowly lose consciousness and think this is a perfectly acceptable way to get all the latest stock updates!
BTW, congrats to new Exec Editor Aminda Marques Gonzalez.  I truly hope you can right the ship and take the Herald in a positive, successful direction.

We're rooting for you.

"Alas,'Twas Not To Be!"



Remember how the plaintiffs tried to cancel the evidentiary hearing before Magistrate Judge Brown?

Turns out he no likey:
Plaintiffs have been sanctioned and even held in civil contempt......Plaintiffs have been warned of the possibility of more severe sanctions.  None of these have stemmed the tide of impropriety.  The Court finds plaintiffs' continued and repetitive conduct tantamount to bad faith.  At some point, the Court will have to seriously consider the sanction of dismissal.  Although the Court announced at the hearing that sanctions would be imposed, upon further reflection, plaintiffs are entitled to "due process" on this issue.
So the judge already announced from the bench that sanctions would be imposed, finds in this Order that plaintiffs' "continued and repetitive conduct" is "tantamount to bad faith" but "upon further reflection" is going to allow some "'due process.'"

I like how "due process" is in quotes -- nice touch!

The SD FL Has A Fancy New Website!

They even have an RSS feed:
 The new website focuses on user-friendly navigation including the addition of a search function.  Some of the new features are:
Alphabetized phone directory
Searchable press releases and public notices
Link to the Federal Bureau of Prisons inmate locator
Media information page
US Courts Library page
About the US Courts
Obtaining records page
Section pages for Magistrate, Court Interpreters, Financial and Procurement
RSS feed option (this allows you to sign up to get notices for certain items on our website)
Mobile version (you can view the site via your cell phone)
RSS feed and mobile version -- I guess we're all bloggers now.

The best part is they put up a picture of a swanky new downtown hotel, complete with swaying palm trees -- take a look:


See you all poolside!

(unfortunately, contract documents specify that "Olympic-sized" swimming pool depicted in marketing materials actually oversized bathtub)

Monday, October 25, 2010

Are You a "Contract Lawyer"?



Julie Kay has a nice piece today on the growing use by firms and clients of  "contract attorneys."

How's this for an exciting job description:
Contract or temporary attorneys are hired by firms large and small for jobs as short as a day or as long as six months. Their pay is significantly lower than full-time attorneys — typically $20 to $35 an hour in South Florida — and they receive no benefits.

Their work is usually limited to document review — reading through hundreds, if not thousands, of e-mails or papers in discovery and litigation preparation.
 I can understand having to do this kind of grunt work as a young BigFirmer, cutting your teeth until you finally get to actually go to court or take a real live deposition.

But full time?  As your entire job?  Oy.

There's more:
Some firms don't like to advertise the fact that they use contract attorneys, but Gregory Young, partner-in-charge of Edwards Angell Palmer & Dodge's West Palm Beach office, said the firm has used contract attorneys for several large intellectual property cases.

"They're not engaged at strategic levels. It's more at levels that involve heavy documentation with some amount of specialization," he said.

"Law firms have really reviewed and taken steps to control expenses, and that includes the number of attorneys that are employed," Young added. "Rather than hire a lateral to take on incremental business activity, we might bring on a contract person."

Proskauer Rose also has turned to contract attorneys to reduce costs. The firm has used two or three over the last year in its Boca Raton office for document review and general litigation, said David Pratt, who heads the office.
It's interesting that 23 percent of managing partners surveyed by the DBR responded that they have hired contract lawyers.

But I wonder if Julie asked if any of these firms "upcharged" their clients for the work -- you know, paid $20 an hour for doc review, but charged the client $75 for the same billable hour.

Not that any respectable law firm would ever do anything like that, right?

Do You Need to Subpoena A Testifying Expert for Deposition?


 Magistrate Judge Brown says yep:
Although it is true that Defendant had the right to depose Dinsmore as a testifying witness under rule 26(b)(4), Defendant may have confused this right with a party's non-existent duty to compel a nonparty deponent's attendance without a subpoena. Defendant's motion for sanctions is groundless.
This is unusual in that the parties typically agree to make their testifying experts available for deposition without formal subpoena.

But nothing in this case is typical, is it?

A Brilliant Mistake.



Wow this seems like pure unadulterated horse hockey:
A new pro-Bondi political committee has fired back, with a website accusing Gelber of down-playing his past as a criminal defense lawyer ``defending convicted drug dealers, con men and scam artists.'' The site is www.TheRealDanGelber.com .

Gelber said his work as a defense lawyer was mostly serving on a legal team at two law firms and filling in for an absent colleague in a court hearing.
Gelber does criminal defense work?

That's not an even remotely fair description.

And even if he did, why is that a bad thing?

Has Pam ever heard of the criminal justice system and the jurisprudential reasons why accused suspects are entitled to competent counsel?

Boy I'm in a fatalistic mood but I don't think this election could get any worse.

Apparently they are even after the Robed Ones up in Tally, according to this email I received from "Citizens for an Independent Judiciary":
This general election, several Florida Supreme Court Justices are on the ballot for “merit retention,” and we urge you to vote to keep them on the bench. All Florida Supreme Court Justices must appear on the ballot every six years—a process that gives the people an opportunity to vote against justices who have acted unethically.

This year, however, the justices on the ballot are being targeted for their legal opinion concerning a SINGLE issue. This is one precedent that should not be established and will lead us down a dangerous road. Don’t allow these esteemed justices to be ousted because of a single legal opinion. The simple truth is removing these justices from the bench would be a gross abuse of the merit-retention process, which is designed to oust members of the judiciary who have proven themselves unfit for office; it is never intended to be a political referendum based on a single opinion.
 Ok, I agree with all that.  There are important institutional purposes behind retaining appointed judges, even the axiomatic ones.

The email continues:
All of these justices are people of great experience, education and integrity, and they have done their best to render justice based on facts and law applicable to each case—not the popular political climate at the moment.

"Great experience, education and integrity"?

Well let's not go overboard.

Still, they are our Robed Ones and certainly deserved to be retained, particularly in the face of an ugly under the radar, highly partisan smear campaign.

You can learn about efforts to protect the independence of our judiciary from these unfair political attacks here.

Friday, October 22, 2010

SFL Friday -- People In Glass Houses.....



I'm channeling my inner proverb-spouting Magistrate Judge Goodman, but here I think it really fits:
A former colleague and one-time girlfriend now tells the Washington Post that the Supreme Court justice was "obsessed with porn" as well as the bodies of his female coworkers.

"He was always actively watching the women he worked with to see if they could be potential partners," Lillian McEwen, a former assistant U.S. attorney and one-time girlfriend of Thomas' told the newspaper. "It was a hobby of his."
Listen, everybody has a hobby -- it enriches the soul. 

Besides, whatever happened to "people in glass houses.....," "judge not lest ye be judged," and my own personal favorite, "I can Dere-lick my own balls, thank you very much."

Oh well, I'm gonna do like Ginni says and pray on it some and -- holy crap, I'm really gonna pray on it some.

Have a great weekend!

Attorney Allegedly Yells At Client at Crowded Lowe's Store


I don't recall a course in collecting monies from a client in law school, but even without instruction I'm not sure this is the right way to go about it:
Some attorneys may firmly go after their clients if owed legal fees. But angrily claiming someone is delinquent on a payment in a crowded public space?

To one local resident, that wasn’t only unacceptable, it was cause for a lawsuit.

Especially since, as a complaint filed Friday in Marion County Circuit Court alleges, Ron Butler doesn’t owe the attorney, Henry Ferro, a dime more than what he already paid him three years ago.

That amount, according to Butler’s complaint, was the flat fee of $3,500 for Ferro’s work defending Butler’s son in a 2007 criminal case. Yet Ferro allegedly believes Butler owes a significantly greater amount: $14,000. And he has been demanding payment, according to the complaint, through harassing phone calls and, most recently, in a crowded Lowe’s store in Ocala.
There was no fee agreement signed.
What's wrong with this picture? 

Thursday, October 21, 2010

I Propose That We Honor Steve Zack!



One thing I think the world could use right now, and everyone is pretty much in agreement with this, is more events honoring my buddy Steve Zack.

Did you know he's the new ABA President?

Oh I kid Steve, but seriously there is DEFCON 1 food truck-level media saturation of his laudable ABA activities and we may want to look around and see if anyone else is doing anything of any interest whatsoever.

(silence)

No?

Ok, then we better just honor Steve again.

You Hardly Talk To Me Anymore...

Meet and Confer You Dummies                                                              

When I come through the door at the end of the day.

Have you wondered how "new" Magistrate Judge Goodman is doing?

Well, he's forced to put up with this crap in addressing both parties' failure to comply with the Local Rule "meet and confer" requirements:
In order to “confer,” a movant must have a give-and-take exchange with opposing counsel. Sending an email and demanding an immediate or near-immediate response and then filing a motion before having an actual substantive discussion with opposing counsel does not amount to a conference or consultation. Instead, it is a one-way missive.
Indeed, that is a problem I have generally with people unable to have civil conversations anymore.  In order to have an actual conversation, you have to approach it from the position that your own views may be incorrect, subject to change, and that you are absolutely willing to acknowledge and hear what the other person is saying and possibly even agree with it.

This is true for both participants in a true conversation.  Otherwise you are just yelling at each other, and may as well be speaking to a wall, potted plant, or (gasp!) Glenn Garvin.

I also like the "but they did it first" defense, which the Magistrate Judge addresses appropriately:
Counsel for Royal Bahamian and QBE both violated Local Rule 7.1(a)(3). The local rule permits the Court to deny all of the motions. QBE urges me to do so (for Royal Bahamian’s motions). QBE’s counsel, who apparently does not follow one of Benjamin Franklin’s better-known proverbs, asked for this severe consequence before QBE’s own, similar violations were exposed.8
The Judge's footnote then references one of Franklin's wisest proverbs: “To lengthen thy life, lessen thy meals.”

Not sure of its relevance here, Your Honor, but I totally agree with it.

So far I'm liking this judge......

Wednesday, October 20, 2010

3d DCA Watch -- Down the Rabbit Hole!

 

And into the bunker, sweet Alice:
Down, down, down. Would the fall never come to an end! `I wonder how many miles I've fallen by this time?' she said aloud. `I must be getting somewhere near the centre of the earth. Let me see: that would be four thousand miles down, I think--' (for, you see, Alice had learnt several things of this sort in her lessons in the schoolroom, and though this was not a very good opportunity for showing off her knowledge, as there was no one to listen to her, still it was good practice to say it over) `--yes, that's about the right distance--but then I wonder what Latitude or Longitude I've got to?' (Alice had no idea what Latitude was, or Longitude either, but thought they were nice grand words to say.)

Presently she began again. `I wonder if I shall fall right through the earth! How funny it'll seem to come out among the people that walk with their heads downward! The Antipathies, I think--' (she was rather glad there was no one listening, this time, as it didn't sound at all the right word) `--but I shall have to ask them what the name of the country is, you know. Please, Ma'am, is this New Zealand or Australia?' (and she tried to curtsey as she spoke--fancy curtseying as you're falling through the air! Do you think you could manage it?) `And what an ignorant little girl she'll think me for asking! No, it'll never do to ask: perhaps I shall see it written up somewhere.'

Down, down, down. There was nothing else to do.....
Welcome to the wild, fantastical, technicolor world deep inside the bunker, where Resplendently Robed Ones promenade down endless halls of Sapele wood-colored concrete; where coffee is provocatively hand-swilled by handmaidens, eunuchs, and appellate counsel (sometimes all the same person!); and where statutes, rules, precedent and gut justice collide in a cacophony of axiomatic sensation climaxing in the very written utterances pulsing concentrically and blissfully out to you today:

Moffat & Nichol v. B.E.A.:

Judge Shepherd writes about being a "consensual lienholder."

I thought this kind of thing went out with Plato's Retreat and key parties?

Lewis v. Sun Time Corp.:

Can a set of stairs have a birthday?

Maybe, according to Judge Schwartz:
Plaintiff’s argument on appeal that evidence of “seventy-one (71) years without an accident, would have been too remote to be relevant” is not sensible. We are not dealing with a question of whether or not there was an accident on the stairway’s birthday in 1937, but rather evidence that there had been no accident on any of the 25,915 days—come rain or come shine—prior to June 1, 2006, when the plaintiff fell.
Also, the lack of accident history for the staircase was decidedly not a "feature" of the trial, even though defense counsel in closing called it "the most important piece of evidence in the case."

 And if you go chasing rabbits
And you know you're going to fall.....


K.R. Exchange v. Fuerst:

Judge Lagoa offers some tips for drafting a complaint:
In this case, the complaint, which purports to allege legal malpractice claims against FHI and Ittleman, fails to comply with the basic rules of pleading. The complaint consists of forty-seven numbered paragraphs containing factual allegations and legal conclusions concerning the malpractice claims against FHI and Ittleman, as well as the claims against CRA and Guido, concerning the implementation of the compliance program. The claims against the various defendants are not divided into separate counts, titled “legal malpractice” or otherwise. Instead, the complaint randomly intersperses the factual allegations and legal conclusions against FHI and Ittleman among the allegations against the other defendants without denoting the separate claims. In addition, numerous paragraphs contain allegations and legal conclusions that improperly refer to FHI and Ittleman (as well as CRA and Guido) collectively as “defendants” and do not differentiate among the various defendants’ actions and statements. Furthermore, in violation of Rule 1.110(b), the complaint improperly contains rambling allegations stating in general terms K.R.-Israel’s dissatisfaction and frustration with FHI and Ittleman’s legal performance. “To say merely that this complaint is not well pleaded is an understatement. It lacks minimal organization and coherence.” Pratus, 807 So. 2d at 796.  

When logic and proportion
Have fallen sloppy dead
And the White Knight is talking backwards
And the Red Queen's "off with her head!"

 Remember what the dormouse said;
"Feed YOUR HEAD!"
"Feed YOUR HEAD!"

The Court: (Yelling at Mr. Klock) SIT

Biased Judge Objection                                                              

I've often wondered, in the toe-tapping lawyer case before Magistrate Judge Brown, when the s%&t would hit the fan, when all hail would break loose, when the "thin veneer of civilization" (to use a favorite Edgar Rice Burroughs phrase) would lift and more primitive impulses start to emerge, overcoming the good intentions of all involved and just tearing the whole danged thing apart.

That seems to have happened with an extraordinary filing by Peter Halmos, acting pro se.  It is titled "Pro Se Plaintiff's Objections to Biased and Prejudiced Court Orders" and is sort of a greatest hits package of allegedly prejudicial quotations from Court orders, transcripts, and various accusations of judicial misconduct.

My favorite part is Peter's lengthy collection of adverse statements in Court orders, which are neatly summarized in a easy-to-read chart.  That's a must-read.

There's also an extended riff on Judge Brown not disclosing that he was an "Insurance Defense Lawyer" for more than 20 years (is that true?) and a nice set of transcripts in which Judge Brown is allegedly (and repeatedly) yelling at Pete's lawyer Joe Klock.

All in a day's work kiddies.....

Tuesday, October 19, 2010

Glenn Garvin Doesn't Read His Own Newspaper!





It's very hard to keep with with our local curmudgeonly TV critic cum 60s "silent majority" libertarian philosopher at large.


First he was handling the entire Herald newsroom.

Then he was apparently editing the New York Times.

Now it appears he stopped reading his own paper:

For all their frothing fulmination, neither the lawyers nor politicians nor journalists have been able to come up with any credible stories of people losing their homes despite faithfully paying their mortgages. They couldn't even find stories about people losing their homes despite being just a couple of payments behind.

That's because there aren't any.
Except the one that occupies the entire front page of today's newspaper!

Other than the fact that Glenn is completely wrong, he's totally right.

David J. Stern: Living the American Dream!



Remember the old joke about the Army -- visit exotic places, meet interesting people, and kill them?

I'm reminded of that by this in depth profile of foreclosure mill maven David J. Stern, who is ably cast by Jeff Tew as the embodiment of the American dream:
“He started from scratch and has built a wonderful legal practice and has made a lot of money,” Tew said. “That’s the American dream isn’t it?”
Hail yes!

Henry Ford dreamed of every American owning an affordable means of transport.

Thomas Edison dreamed of a America lit up from sea to shining sea in glorious technicolor.

And David apparently dreamed of a massive foreclosure factory whose primary purpose is to deprive others of their American Dream:
Hilton Wiener, a Florida attorney who has defended homeowners in foreclosure cases against Stern’s firm, described Stern’s operations as “more similar to a factory than a law firm.” The business, he said, depends on homeowners’ not contesting foreclosures so that cases can move quickly through the courts to judgment, Wiener said, basing his view on former Stern paralegals whom he has hired.
“This is like a production line,” he said. “The bank needs them to get certain results. It just becomes a foreclosure processing mill.”
And really, kids, isn't that what America is all about?

Monday, October 18, 2010

Judge Tjoflat: "I Was Wron......"



There's a surprising lack of internet information regarding Fonzie from Happy Days' inability to say "I was wrong."

Here's the best link I could come up with, which isn't much.

But if you watch the above clip starting around 1:45, you'll remember what I mean.

Anyways, Judge Tjoflat overcame his inner Fonzie and admitted he just was flat-out wrong about CAFA jurisdiction, reversing himself in a widely-criticized opinion that was the subject of much tsurris in the district courts:
There is no requirement in a class action brought originally or on removal under CAFA that any individual plaintiff’s claim exceed $75,000.
 There, was that so hard?


"These days are yours and mine, Happy Days!"

"Taj Mahal" Courthouse Built At Bunker's Expense?



The scandal involving the 1st DCA's "Taj Mahal" courthouse continues, as politicians and administrators play political football in light of Alex Sink's recent audit.

The latest pushback is from the head of the state agency in charge of the construction of state buildings, Linda South, who says basically that the 1st DCA judges constantly meddled with the project:

She said there was a point, early enough in the project, to "put a fence around the design of the courthouse."

Her agency is supposed to be in charge of constructing state buildings, but e-mails show that the DMS and the judges struggled over control. South replaced one agency architect with another after the first one clashed with the judges over control.

The judges wanted veto power over anything the DMS did, a point South refused to concede, though the DMS agreed to notify the judges of everything.

First District Court Judge Paul M. Hawkes, chairman of the court's building committee, objected when he felt the court was not included in even the smallest details.

"We are under the impression that there have been communications where we were not included," Hawkes wrote in a 2007 e-mail. " … We feel it is essential that NO communications occur about this project without us being included."

In February 2008, the judges insisted on firing Tallahassee architects Barnett Fronczak Barlowe because the firm refused to design a building that would cost more than the state had budgeted.

"The judges were unhappy; they wanted more building than they had money to spend," South recalled.

The judges wanted a building with "wow" factor — "worthy of the court and its functions," according to 2007 notes taken by Hawkes' law clerk of early meetings between the architects and judges.

Chris Kise, attorney for Gov. Charlie Crist, attended one meeting and warned the judges that the governor and Legislature supported "a nice courtly facility but not at the expense of the four other DCAs and the Supreme Court," where there are older facilities.
We may have a little fun from time to time with the bunker by the highway, and there may not be miles of Sapele-wood, flat-screen TVs or gleaming granite countertops, but let me assure you -- our concrete center of justice is completely state of the art.*


* state of art circa 1974, aka the "Reubin Askew" Florida style manual





Let me ask another question -- why does a courthouse need a "wow" factor?

Whose ego is stoked by such a thing?

As a litigant, I'm perfectly happy with a "nice courtly facility," what's so wrong with that?

(BTW, when we can we get a nice courtly facility?)

Saturday, October 16, 2010

Is Glenn Garvin Now Editing the New York Times?



We've seen what happens when Glenn Garvin takes over an entire newspaper.

But Garvin's appetite, not sated, has apparently led him to edit stories for the Grey Lady herself.

How else to explain this whopper from an otherwise superlative article on the foreclosure mills that infest our state:
In an interview last month, Mr. Stern, the Florida lawyer, accused Mr. McCollum, who is standing for re-election as attorney general, of political motives in opening the inquiry into his firm and others.
Come home Glenn, we're sorry, you were right about Nixon and the Half Hour New Hour, just come on home.....

Friday, October 15, 2010

SFL Friday -- He Went Out Ant-Hunting With His Elephant and Gun....



I can't believe we made it to Friday.

Let's get right to it:

I Scribd this so you can click on the link, but Magistrate Judge Brown has scheduled a hearing on whether or not the plaintiffs in the toe-tapping lawyer case can unilaterally cancel a Court-ordered hearing.

Can this get any better?

(I'm thinking YES IT CAN)

Here's a highlight:
Plaintiffs are completely disingenuous when they claim they will not waive any matter that is properly before the jury ... they already have!

Unfortunately, plaintiffs wish to "kill an ant with an elephant". The real issue is the scope of the hearing. Filings of proposed testimony to be offered by defendant (which may or may not be allowed at the hearing) do not change the scope of the hearing. It will be governed by the Joint Motion of the parties (D.E. 698) and subsequent Order of the Court (D.E. 706). In large part, plaintiffs are correct -the hearing is to resolve question(s) surrounding the documentation supporting claims. Defendant will not be permitted to take a position at this hearing that it has not taken prior to the filing of the Joint Motion. However, the task of determining whether the items at issue are covered under the policy clearly is an issue at this hearing. Undoubtably, plaintiffs have understood this all along. See, e.g, D.E. 964.
Ok, sounds like the Court has already determined the issue -- so why is there a half-hour hearing on the hearing again?

In other news, you need to be at the right place at the right time, oy with this Carl Paladino, and salt turns out to be good for you.

Have a great weekend!

"I Said Good Day, Sir!"

Dont Waste My Time Again                                                              

Do any of you come here for legal analysis and opinion?

Judging from your search terms, let's leave that question unanswered.

But there are a dogged few, a ragtag bunch of judges, judicial staff, ham-and-schleppers and BigFirmers who -- in between copious sessions browsing for cat piano mashups and free x-rated content (sometimes simultaneously) -- actually come here to learn something.

So here's a lesson -- don't waste the Court's time raising new arguments you should have thought about the first time.

For example, if you're the plaintiff and you've just been hit by defendants for a big fee award under an offer of judgment theory, and the Court has "thoroughly and painstakingly" reviewed your arguments (not to pat oneself on the back), don't go back and try to argue entitlement in a motion for reconsideration you big fat dummy:
After this Court thoroughly and painstakingly reviewed the arguments raised by Plaintiff in opposition to the motion, which resulted in a material reduction of the fees and costs requested by Defendant, Plaintiff (still unsatisfied) seeks to start over and have the Court review the matter anew with arguments that could have, but were not, raised in a timely fashion in opposition to the original motion.
Oy, not good so far....
Having obtained only limited success through its original arguments in opposition to the motion for fees, Plaintiff – without any explanation or suggestion why any entitlement arguments could not have been raised earlier – simply asks that the Court exercise its discretion to reopen the matter and consider new legal theories. But the Motion presents no persuasive factual or legal basis for the Court to do so under the circumstances. To paraphrase Judge Birch, this too constitutes a second – but untimely – bite at the apple. The Court will not entertain these untimely arguments now and rests this Order entirely on that procedural basis.
 I said Good Day Sir!

I agree with this as a policy matter.

Also, why would you not raise issues regarding entitlement (the form is bad, the release is bad, not everyone named etc.) as a threshold issue?

The only wrinkle is that the area of law -- offers of judgment/proposals for settlement under Fla. Stat. § 768.79 -- is wildly, hopelessly screwed up, and has been for decades.  There are badly reasoned decisions, conflicting statutes, amendments to statutes, cases that deal with older versions of statutes, you name it.

Good thing our friends in Tallahassee are working hard on cleaning it all up!

"There's Gambling Going On Here"?




I'm feeling pretty morose over the general political, economic, and legal climate we find ourselves in nowadays.

We may soon have Scott as our Governator and Rubio our Senator.

That's depressing enough.

Meanwhile the judicial vacancy crisis rages on, with real-life negative effects for litigants seeking justice:
Since March 2007, Middle Tennessee has been short one of its four U.S. District Court judges. Then, as now, Middle Tennessee should have four federal district court judges to share the responsibilities of adjudicating all of the civil actions and federal criminal matters filed in our 32-county region. With the fourth position vacant, more than 1,400 civil cases and more than 300 criminal cases involving over 550 criminal defendants must now be handled by the remaining three federal judges, taxing the judges and the federal court system.
Senior judges work part-time to assist in managing that caseload, and four magistrate judges conduct preliminary hearings on criminal matters and some of the civil trials by agreement of the parties. The vacancy of one of the four seats renders it difficult for the judges to handle the escalating caseload effectively. Placing this burden on the remaining judges can lead to a serious delay in the administration of justice in the Middle District of Tennessee.
President Barack Obama has had fewer judges confirmed to the bench than any president at this point in his tenure since Richard Nixon nearly 40 years ago.
With our do-nothing Congress, is there any reason to expect some confirmations before it adjourns?

Maybe we don't need courts anymore, depending on how the Supremes handle the arbitration issues raised in the important AT&T Mobility v. Concepcion case, due to be argued before the Wise Ones on November 9th.

Same with the widening question of preemption, also due to be argued before the Supremes this term.

Here's one reason vesting all power in the feds may not be a good idea:
The agency responded by releasing a detailed report last year that found that the agency’s scientific reviewers had repeatedly and unanimously over many years declared Menaflex unworthy of approval, but that they had been overruled by agency managers after political pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman. The report also concluded that Dr. Andrew C. von Eschenbach, then the agency’s commissioner, had become inappropriately involved in the decision, and that agency procedures had been bypassed.
All four lawmakers made their inquiries about Menaflex after receiving significant campaign contributions from ReGen, which is based in Hackensack, N.J. Dr. von Eschenbach and the four lawmakers said they acted properly.
God I'm beginning to sound like an ass.

What to do, what to do......

Ok, I feel better now.

Thursday, October 14, 2010

3d DCA Watch -- Exciting New Changes in the Bunker!



Slim pickings inside the concrete hall of justice, kids.

Maybe it's because while the 1st DCA fends off calls by Governor Crist and Alex Sink to have the JQC investigate its letter-writing Chief Judge, our own Robed Ones have been delighting in a new coffee pot in the attorney's lounge which - rumor has it -- apparently includes genuine vending machine paper coffee cups with a wild card on the bottom!

Extravagant, even decadent perhaps, but the denizens who toil inside the bunker deserve nothing less.

So enjoy your flat screen empty, granite top missing, 100% African Sapele wood-free 3d DCA roundup:

Deno v. Lifemark Hospital:

Why would anyone voluntarily arbitrate under this med mal statute?

Barnett v. Bank of America:

Am I reading this wrong or did the bank allegedly try to intentionally injure its Bay Harbor employees?

Centennial v. Dolomite:

Judge Schwartz, in a vigorous dissent, has an aggravated case of "law of the case."

I had this once.

May I suggest some hydrocortisone cream and a nice oatmeal bath?

Wednesday, October 13, 2010

You Don't Need A Weatherman to Know Which Way the Wind Blows.

``

As I predicted, it appears the 3d DCA opinion overturning Florida's gay adoption ban will not be further appealed:
It's clear that the District Court of Appeal decision is of statewide application, and it will be binding on all trial courts across the state,'' Sheldon said.

As of last week, the state had exhausted the time to challenge the Gill adoption, and so, regardless of the law's status, the two children will remain Gill's adoptive children, Sheldon said.

Sheldon said he had discussed the case with Florida Attorney General Bill McCollum as early as Tuesday morning, and informed the state's top law enforcer of his decision. He said he does not know whether McCollum will choose to exercise his authority to appeal to the Florida Supreme Court in defense of the state statute.
Add to that recent federal district court rulings on DADT, DOMA, and Prop 8 and it's evident there's something happening, and you don't know what it is, do you Mr. Jones?

Oops, there I go again!

Question -- how cocooned do you have to be to think it's a good idea to purchase 20 miles of African Sapele wood at taxpayer expense for your fancy new appellate courthouse?

I have been to the bunker by the highway many times and I can assure you there is no wood in that building anywhere -- literally there is nothing organic or derived from the earth anywhere inside that place unless you count "concrete" as an all-natural substance.

And this is something we're proud of!

Finally, someone wants to shut Spencer Aronfeld up.

Have a nice hump day.

Tuesday, October 12, 2010

Let's Have A Meet and Confer!



Has anyone heard about that case involving the (alleged) toe-tapping lawyer?

Well for you junkies and obsessives, in rolled the defendants' response to an attempt by the plaintiffs to cancel an evidentiary hearing (not the toe-tapping one, which I believe is still on).

Plaintiffs allegedly filed their notice of cancellation without conferring first with the defendants, prompting this love note:
OBJECTION TO PLAINTIFFS' NOTICE

Plaintiffs failed to confer with INA regarding their Notice in violation of Local Rule 7.1.A.3.  Had Plaintiffs done so, INA would have informed them of the pending Court Orders, Plaintiffs' obligations pursuant to those Orders, and the lack of any basis upon which Plaintiffs could conceivably attempt to unilaterally cancel a COURT ORDERED evidentiary hearing.  INA would further have informed Plaintiffs that their actions were sanctionable.  Due to the Plaintiffs' failure to confer with INA regarding this relief, Plaintiffs violated Local Rule 7.1.A.3 and this Court should strike the Notice.
Boy, that would have been some conference!

I'm not singling anyone out, but I often say it's pointless to have a "conversation" with someone who is unwilling to entertain the possibility that they could be wrong, that maybe they missed something, who is unwilling to be persuaded through open and collaborative inquiry, and who is just waiting for you to stop talking so they can continue their argument.

That's why I find so much of the political intertubes chatter to be so utterly lame.

However, through intertubular magic, we now bring you the missed "conference" described by defendants above:

Plaintiffs' Counsel ("PC"):  Hi, we're thinking about cancelling that big evidentiary hearing and wanted to confer with you about that.

Defendants' Counsel ("DC"):   (silence)

PC:  Hello, is this thing on?

DC:  (building.....)

PC:  Aaah well, ok, just wanted to let you know.   Have a nice.....

DC:   (slowly, through clenched teeth)  There are two pending Orders.  You have obligations pursuant to those Orders.  There is a lack of any basis upon which you could conceivably attempt to unilaterally cancel a COURT ORDERED evidentiary hearing.  Your actions are sanctionable. 

PC:  So glad we had a chance to talk!

DC:  Wait, did you see Glee last night?

PC:  (click)

Bring Back Lew Freeman!



I have noticed a distinct decline in interesting metaphors and wild analogies since Lew Freeman went to jail.

For example, bad karma is catching up with David J. Stern, but look at how his attorney Jeff Tew responds to it all:
The whistleblower's testimony, released last week, is a jarring account alleging widespread fraud and criminal activity at the law firm. Tammie Lou Kapusta, a one-time paralegal at Stern's office, detailed a corporate environment where tampering documents and forging signatures were normal practices, endorsed by high-level executives.

``They wanted us to start changing the documents and stuff and doing stuff that we weren't supposed to be doing as far as service,'' Kapusta told McCollum's staff.

Jeffrey Tew, lawyer for Stern's law office, has dismissed Kapusta's testimony as categorically false.
``It's not true what she says,'' he said. ``She was terminated for cause. It sounds like a cliché but it's a disgruntled employee out for revenge.''
Jeff, you've given us some tear-welling prose before, but this time you're right -- it does sound exactly like a cliché.
 
But I know how Big Lew would have handled this.
 
Lew would have pulled out a spectacular, mind-blowing nautical analogy, like:
 
"She's like the iceberg on the Titanic, and we're all going down with the ship"!

Or

"That woman is like a bad meatball sub -- she keeps repeating on you the next day."

Or

“There’s so much backed up that when it comes out we are going to need hip boots.  It’s going to stink, and it’s going to be deep.”

Wait a minute on that last one -- Lew actually said that.

Monday, October 11, 2010

Tell Us Your Favorite Firm Weekend Story!


Ahh firm weekends, the chance to bond with people you hate -- what could possibly go wrong?

Today's a quasi-holiday, so if you're in please feel free to use this space to share and/or make up a really juicy firm weekend tale (though it helps if it's at least plausible or partially grounded in reality).

My own personal favorite was that time I got invited to an all-male partner weekend retreat, where we sat around naked in the woods, fondling a wooden sex toy and grabbing each other's schmekels -- such innocent fun!

What, don't believe me?  Not "grounded in reality"?

Then just ask California lawyer Steven Eggleston:
Attorney Steven Eggleston was suspicious when his boss pressed him to attend a weekend male retreat, but refused to tell him what would be happening there, saying participants were sworn to secrecy.

So he did a Google search and found out why.

Men would be holding hands and walking naked, blindfolded, through a forest. Then they would sit nude in groups of 30 to 50, passing around a wooden dildo and giving lurid details of their sexual history. Eggleston said he found out that the men will grab each other's penises if they wish.
Top that, South Florida!

Help Buju Banton Pay His Lawyer (What's His Name Again?)



I always say lawyers should get paid for good work.

That's why like-minded citizens can band together and help Buju defend himself (wire instructions included!):
Markus told the Observer that the cost of the first trial has taken a huge financial toll on the artiste and asked fans, friends and supporters of the artiste to assist in any way they can.
Very true.  That's one advantage the government always has when they decide to retry a case -- they never run out of money.

On the other hand, does anyone else find it unseemly (obscene?) that Ken Feinberg has already collected $2.5 million for three months' work on the Deepwater Horizon disaster:
The $850,000 monthly payments to Feinberg’s firm will continue through year-end and then will be reviewed, a person familiar with the contract said today.

The money goes to seven professionals at Feinberg’s firm and is paid by BP separately from the fund to help victims, according to the person, who spoke on condition of anonymity about details not spelled out in today’s report. Among those being paid is Feinberg’s brother David, according to the report. David Feinberg is listed on the firm’s website as director of special projects.

The payments from BP help offset the “significant distortion” the project is causing to the Feinberg firm’s business, Mukasey said in the report today. Feinberg Rozen has turned away three mediation requests since June, according to the report. 
 Ok, three mediation requests but come on!

The last time I used Feinberg for a mediation he was billing well north of $1000 an hour, and that was quite a while ago.

How's that compare to the hourly rate of an Article III judge, like Judge Barbier who is presiding over the actual MDL litigation?

BTW, the Judge picked the steering committee to oversee the prosecution of the Deepwater Horizon litigation, and our own Ervin Gonzalez made the list, which you can see here.