Friday, December 31, 2010
Well that's what it looked like when I opened up my Herald this morning, which had a file photo of NBA Commissioner David J. Stern accompanying this story about Plantation Foreclosure King David J. Stern:
(That Stern is one busy cat.)
Thursday, December 30, 2010
Hmm, this seems more like that other Lottery than a nice friendly Village game among friends:
Seven members of a lottery pool in this huge retirement community are accused of cutting out an eighth member from a $16 million jackpot, according to a lawyer representing the woman who is suing to get her share.
Oh boy -- nothing in writing, an alleged custom and practice that the other friendly Villagers will surely disavow, oral agreements regarding potentially large sums of money.
"It's unfortunate," said Eric Shane, a Miami lawyer for Jeanette French, 72, who has been a member of the weekly pool for nine years and stands to lose a $1.1 million cut. "She really did consider them friends."
French and all but one of the pool members had worked together at the Hacienda Hills Country Club golf shop in The Villages, which bills itself as America's friendliest hometown. One of the members is listed as the club pro, Robert Jacobus.
But cutting out French, each of the pool members would collect an extra $165,265.53, pre-tax.
According to a civil lawsuit filed in Sumter County, the lottery group's usual practice was to collect money from each player, write the player's name on an envelope and then deposit the tickets in the envelope.
Shane said the group ordinarily covered the $1 entry fee for a pool member who was not at work or who did not have the cash on hand. French was not at work when the money was collected for the Dec. 15 drawing.
But, according to a sworn statement signed by French, pool member Richard Ciccone, 69, called her at home and asked if she wished to play. She said she did. When she arrived for work Dec. 16 — before the players had checked the ticket against the drawing's numbers — Ciccone informed French, "You owe me money" and she paid him.
He then gave her the ticket to check the numbers.
Shane said French compared the numbers and excitedly told Ciccone that they had won and gave him the ticket to doublecheck.
"She didn't think twice about keeping the ticket," Shane said. "They were all friends."
But French was forced to file a lawsuit last week to protect her right to an eighth of the jackpot because she learned that the other pool members planned to split the winnings only seven ways.
"Upon learning of the winning ticket, I was coldly informed that despite my conversation on Dec. 11 with Ciccone, and my years of consistent contribution and membership, my name was 'left off the envelope' and I would not take part in sharing the lottery winnings," French said in an affidavit, which was attached to the lawsuit.
Does anyone think Eric has a case?
BTW, note to the nice looking guys at Ferrer Shane -- why are all of you folding your arms?
Body language experts tell us folding your arms is defensive, suggesting a closed mind and unwillingness to hear what the person across from you has to say.
On second thought, maybe not a bad pose for a lawyer.
Wednesday, December 29, 2010
There is an unintentionally hilarious article in the Florida Bar News that curiously does not involve or even mention my pal George L. Metcalfe.
It purports to compare the palatial "Taj Mahal" like new 1st DCA facility with, of all things, our own little bunker.
Let's see how we stack up!
** Fasano was critical of a rubber-floored exercise area in the new First DCA, which he referred to as a gymnasium. But other DCAs also have exercise areas. But all are ad hoc, set up in storage areas or mechanical rooms and using donated equipment.That's right -- I know this because I personally donated my old vibrating belt, which you can see in use at the 3d DCA closet/gym in this undated photo:
I also gave them my old medicine ball and a pair of kettle bells -- hey wait, all these things are making comebacks!
** Fasano also noted that the First DCA “gymnasium” had an attached shower room and wondered how common that was. All of the other DCAs reported having showers although they were part of restrooms. Most reported one or two showers for each gender, with the exception of the Third DCA, which has separate showers in seven of its judicial suites.Let's see, ten judges but only seven showers -- that math works for me.
** The private bathrooms for judges at the First DCA also have garnered attention. They include a toilet, a mahogany medicine cabinet, and a marble-topped small vanity with sink, in a space about the size, or perhaps a little larger, of a bathroom in a typical home. Every other DCA, with the exception of the Second DCA’s Tampa branch courthouse, also include bathrooms for judges, although smaller. Suhr noted the Second DCA’s bathrooms are four by six feet — less than half the size of the First DCA’s. Third DCA Marshal Al Sadowski said the small judicial bathrooms there each have a toilet and a sink bolted to the wall.Bolted to the wall? You mean like in prison?
** Fasano also criticized the kitchens in each judicial suite, which feature a sink and a long, marble-topped counter over painted cabinets. The Second and Third DCAs do not have kitchens in the judicial suites.Excuse me, but is someone forgetting a certain coffee maker?
Anyways, I'd take a private shower over a kitchen any day.
** In appearance, there is little in common between the new First DCA courthouse and other DCA courthouses. Those are one or two story structures where any columns appear to be almost symbolic, while the First DCA features large columns inside and outside of its three-story home. None of the others include domes, which is an architectural highlight of the First DCA structure.This is unfair -- I believe the bunker's architecture speaks for itself.
(Oops -- have I gone too far?)
The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.
Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?
Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:
The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!
Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.
When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.
Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony? Also, that the plaintiff speaks Creole and the deposition required an interpreter? Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed? Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?
I admit this case presents a close call, on difficult facts. But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.
And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.
Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.
In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:
The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.See kids?
Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.
Bad facts make bad law.
Tuesday, December 28, 2010
Once again the Intrepid One™ breaks news:
Casey, who starts Dec. 31, is bringing along partners Richard Tuschman, Kevin Vance and Hector Chiconi as well as associates Teresa Maestrelli and Mark Beutler, a paralegal and an undetermined number of office staff. All the lawyers practice in labor and employment except Chiconi, who has an immigration practice. The only remaining partner at EGB, Robyn Symons, is in discussions with Duane Morris.Congrats to a fine group of lawyers and we wish them the very best.
Also joining Duane Morris from EGB will be Eddie Feenane, a longtime recruiting and administrative head who cut his teeth at Steel Hector & Davis. Feenane will coordinate recruiting, marketing and business development efforts for Duane Morris’ Miami and Boca Raton offices.
According to a source close to the firm who did not want to be identified, the group is departing EGB partially due to its lack of a full-service platform and partially due to financial reasons.
"No one wants to refer cases to other firms," the source said. "Additionally, they haven’t kept competitive on salary and bonuses."
Totally unrelated, but I really enjoyed Mike Myers in Austin Powers. I sure hope he keeps that franchise going.
Monday, December 27, 2010
Bank Atlantic New Trial Motion
I'm paraphrasing, but that's the takeaway from BankAtlantic's motion for new trial, which through the magic of Scribd you can gaze at above.
I'm paraphrasing, but that's the takeaway from BankAtlantic's motion for new trial, which through the magic of Scribd you can gaze at above.
Welcome back to lawyer purgatory, that period between Christmas and New Year's where everyone pretends to be working but nothing gets scheduled and no one really does anything again until next year anyways.
Ever wonder what happened to youngin' lawyers doing foreclosure work at David Stern's shop?
The pups just moved along to another foreclosure joint:
'A game of Whac-A-Mole'
The Atlanta-based McCalla Raymer law firm, which handles foreclosures for mortgage giant Fannie Mae in Georgia, hopes to do the same in Florida. In November, as the firm began setting up shop in Orlando with 10 former Stern attorneys, disgruntled homeowners in Georgia filed a federal class-action lawsuit against the firm, claiming it used forged documents to take their homes, often while they were in the midst of modifying their loans. This month four other Georgia homeowners - who are representing themselves - have filed similar lawsuits against McCalla Raymer.
The firm initially registered to do business in Florida as McCalla Raymer Florida LLC but dissolved that firm a month later and is now registered to do business in Florida as Stone, McGehee & Silver. The firm, which hired former Fannie Mae associate general counsel and foreclosure expert Susan Reid last month, has plans to expand throughout Florida, advertising for attorneys in Tampa, Fort Lauderdale, Miami and Orlando. While at Fannie Mae, Reid worked with foreclosure attorneys in its retained attorney network, including those from Stern's office.
The Fort Lauderdale-based Law Offices of Marshall C. Watson has picked up five former Stern attorneys, while Shapiro & Fishman, with offices in Tampa and Boca Raton, has hired one. Both firms, as well as Stern's company and the Tampa-based Florida Default Law Group, are under state investigation.
Other lawyers who have left Stern's company are now earning a living at several Fannie Mae-designated foreclosure firms, such as Ben-Ezra & Katz in Fort Lauderdale and Kahane & Associates in Plantation.Hmm. But for the necessity of having a live lawyer body at court hearings and mandatory mediation, I wonder whether this work wouldn't all be outsourced to India?
"We did a thorough vetting of the Stern attorneys," said Marty Stone, a managing partner with McCalla Raymer. "I don't want to say we weren't concerned at all, but I do think there is a danger of painting with too broad of a brush."
Still, the distribution of former Stern attorneys to other firms feels like an injustice to some homeowners in foreclosure.
In sworn statements taken by the state attorney general's office, two former Stern employees - a paralegal and a legal assistant - attest to wrongdoing at the firm that included hiding problem files from federal auditors, forging signatures and making up documents as staff struggled to keep up with a mounting volume of foreclosures.
"It's like a game of Whac-A-Mole - these unethical, dangerous attorneys just pop up somewhere else," said Lisa Epstein, a homeowner advocate in Palm Beach County who runs the website Foreclosure Hamlet. "The Florida Bar has proven that they have no intention of disciplining these unprofessional attorneys."
And young lawyers do need to pay for that education, but at a certain point I'd rather be flipping burgers in Boca than doing this kind of
Saturday, December 25, 2010
Friday, December 24, 2010
It is with great sadness that we note the passing of Neil Rogers.
Neil was a formative influence in my life and helped shape who I am today. He was smart, funny, irreverent, fearless, and spoke -- sometimes yelled -- truth to power.
Even when he started in South Florida, doing "issue" radio in the mid-70s, he was sui generis. Although Neil followed in the footsteps of other brash Miami radio icons such as Alan Burke, his persona was entirely different -- Neil knew his yiddishisms, like Burke did, but he took his personal obsessions, quirks, and idiosyncrasies and made them compelling, groundbreaking entertainment.
By the time he abandoned the issue format and let loose his freewheeling mix of hockey, horse racing, movies, politics, cheapskate Canadians, fart jokes, song parodies, and condo commandos, Neil was in orbit and brought his listeners along for the ride. He exposed phonies, fraud, injustice and pretense, joked about the petty frustrations of life in South Florida, battled with his radio colleagues, censors and management, and proudly wore his political leanings and sexuality on his sleeve at a time and in a place (sports radio) where neither were especially welcomed.
Thank you Neil for saving so many of us, along with all the jokes.
Thursday, December 23, 2010
Hi kids, are you still at work? I sure hope not.
My friend Tom Spencer wants you to be afraid, be very afraid of
Hey, Christmas truly is beloved by everyone!
One of my most-viewed posts deals with the lawsuit that Spanish-language soap opera star William Levy brought against an LA attorney over allegations of forced oral sex and venereal disease. The case is pending before Judge Moreno.
Now it appears Levy's attorney, Ralph Patino has sought leave to filed a second amended complaint, chock full of additional allegations.
You can take a deep breath and review the proposed amended complaint here.
Wednesday, December 22, 2010
Hear ye Hear ye, the 3d DCA is festooned this day with officially sanctioned holiday cheer, dispensing PCAs to all the good little boy and girl litigants, and indubitably (real word used last week by Judge Shepherd!) sharing the peaceful joys of the season.
It's true the holiday party got a little out of hand, what with the eggnog-spiked swilled coffee, the well-placed mistletoe hanging from Judge [ed. -- name deleted] or possibly his chambers, the "guess what's under my robe" game that quickly went awry, and of course the traditional gathering 'round the bunker fire to hear a spirited reading of the most
Still, that's what I call an old-fashioned 3d DCA Christmas!
Crombie v. Williams:
This is an appeal of a denial of a petition for a mother to relocate to Jacksonville with her minor child. In the process of reversing Chief Judge Brown below, the 3d also remanded with instructions to consider the mother's pending petition for child support.
This leads Judge Shepherd, in a concurrence, to take issue:
I am not unmindful of the several good reasons why Crombie wishes to move to Jacksonville. I write only to remark that we tread on dangerous ground when we opine on matters not before us, and express my belief it is as likely as not in this case that Crombie has been, at least to some extent, the author of her own undoing.Hey, I was with Judge S through the "we tread on dangerous grounds when we opine on matters not before us" but correct me if I'm wrong, isn't the rest of the sentence -- "my belief it is as likely as not in this case that Crombie has been, at least to some extent, the author of her own undoing" -- opining on matters not before us?
Or maybe it's the eggnog.
Bay Park v. Triple M. Roofing:
The 3d sends the appellee a holiday card:
Finally, because the motion filed below represents the quintessential example of a frivolous motion rendering the time spent in the prosecution of this appeal equally wasteful, we grant appellant’s motion for costs pursuant to Florida Rule of Appellate Procedure 9.400(a). As to attorney’s fees pursuant to rule 9.400(b), the Florida Supreme Court has stated that the language of rule 9.400(b) requires that “a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court's order in support of a motion for attorney's fees for services rendered in an appellate court.” United Servs. Auto. Ass'n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000). Accordingly, we deny appellant’s motion for attorney’s fees filed prior to the reply brief. At the same time, the Court on its own motion orders the appellees, Triple M. Roofing and IRT-Arcon, Inc., shall show cause within ten (10) days as to why this Court should not impose sanctions, including attorney’s fees, against the appellees and their counsel pursuant to section 57.105, Florida Statutes (2010), and Rule 9.410 of the Florida Rules of Appellate Procedure.Oh, also: Merry Christmas to all, and to all a good night!!
It's true we broke news of and have been actively covering the Luke Campbell case that Richard Brodsky masterfully tried before Judge Cooke, but now Uncle Luke, a columnist at the very fine Riptide, breaks his silence over the controversy and has some harsh words for Judge Cooke:
When I finally heard about the allegations, I fought to vacate the judgment and dismiss the case.Me: Be a gracious winner. You won the case, for chrissakes! You don't need to slam Judge Cooke for her "power play," whatever that means. Litigants don't really hold equal power with the presiding judge in a federal case, anyways.
The judge refused me, ruling there was enough evidence to send the case to trial. It didn't look good for Miami's favorite uncle. So I hired Richard Brodsky, former attorney of the Securities and Exchange Commission, to defend me. At that point, I had spent a lot of money, and knew I would have to spend a lot more.
When the trial began two weeks ago, Butler was allowed to talk about her job, child, and community service. The photographer was afforded the same opportunity. But when I was on the stand, the judge instructed my lawyer to stop asking me questions about myself. She said that information was irrelevant.
I respect some judges, but not all of them. There is always a chance you'll get one who doesn't like you, your political leanings, or your core values. I would rather face a jury of my peers, who can debate the merits of the argument and come to an unbiased conclusion. In my case, the jury saw through the judge's power play.
Also, and I'll let my buddy Brodsky weigh in on this if he's so inclined, but maybe the judge let in evidence of the plaintiff's background because it went to her damages?
Just take the "W" and move on.
BTW, I'm happy Luke spent a lot of money on Richard -- it was evidently worth every penny.
Tuesday, December 21, 2010
Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!
So what's the status of efforts to roll back Twombly or Iqbal?
Senator Spector's bill is D.O.A., as is the House version.
That's good news for some, except Microsoft billionaire Paul Allen:
A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.
Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.
From the Court order:
Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.
You can read the complaint and judge for yourself.
Monday, December 20, 2010
You know how Ruden indicated to The Intrepid One a few weeks ago that it was in growth mode and looking to hire some new associates, but then turned around and fired a bunch of dedicated staffers just in time for the holidays?
Well it looks like that form of "growth" is continuing:
The West Palm Beach office of Shutts & Bowen law firm has announced an end-of year expansion, bringing five new lawyers to the team. The firm has not yet named a fifth lawyer expected to join the practice at the start of 2011.
Among the arrivals are Ruden McClosky top producers real estate lawyer Steven Parson and business litigator Eric Christu. Both join Shutts as partners.Call me crazy, but nothing shouts GROWTH louder than losing a top producer to a direct competitor.
This is truly Sun Tzu in action.
Well played, sir!
Continuing with our earlier story about Mr. Chow and Richman Greer attorney Lyle E. Shapiro's withdrawal from the defense of the case......
(God is it slow around here -- I'm beginning to lose my mind. Help me out people).
Longtime readers know we have been tracking Mr. Chow's long hand-pulled noodle-like passage through the SD FL for some time now.
There have been several substitutions in the cast of characters
Now it appears the defendants may be running out of money; at a minimum they have run out of Richman Greer's good counsel, as that firm has recently withdrawn from the case.
Methinks all is not well in noodle-land.
Sunday, December 19, 2010
I don't want to get all Glenn Beck-y so early on a Sunday, but I wonder if there's some larger point that could be extracted from these very interesting stories in the Sunday Times:
1. Tort reform is having a direct impact in Texas:
The tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting, but especially emergency rooms. It capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000.Hey, don't go there!
Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it.
Malpractice lawyers say this is a near-impossible threshold to meet. “You’d have to be a Nazi death camp guard to meet this standard,” said Jon Powell, a malpractice and personal injury lawyer based in San Antonio.
2. The Roberts Court is increasingly pro-business:
The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.3. And then there's this:
The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.
When the Tea Party holds its first Conservative Constitutional Seminar next month, Justice Antonin Scalia is set to be the speaker. It was a bad idea for him to accept this invitation. He should send his regrets.Perhaps it would leave Scalia more than just looking rash and biased?
The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.
By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.
In breaking news from 1905, I don't have much to add to the Wikileaks controversy, other than I'm generally a fan of transparency in government -- Gulf of Tonkin, Pentagon Papers, Watergate and all that.
Still, I was reminded of the possible value of the project while reading James Bradley's eye-opening The Imperial Cruise: A Secret History of Empire and War.
Bradley, author of two fabulous WW II accounts, Flags of Our Fathers and Flyboys: A True Story of Courage (starring the very heroic first President Bush) reaches back in his latest book to understand why his father wound up fighting in the Pacific and just how the United States got embroiled in empire-building at the turn of the century in the first place.
Near the beginning of the book, there is this:
In the summer of 1905, clandestine diplomatic messages between Tokyo and Washington, D.C., pulsed through underwater cables far below the surface of the Pacific Ocean. In a top-secret meeting with the Japanese prime minister, Taft -- at Roosevelt's direction -- brokered a confidential pact allowing Japan to expand into Korea. It is unconstitutional for an American president to make a treaty with another nation without United States Senate approval. And as he was negotiating secretly with the Japanese, Roosevelt was simultaneously serving as the "honest broker" in discussions between Russia and Japan, who were fighting what was up to that time history's largest war. The combatants would sign the Portsmouth Peace Treaty in that summer of 1905, and one year later, the president would become the first American to be awarded the Nobel Peace Prize. The Nobel Committee was never made aware of Roosevelt's secret negotiations, and the world would learn of these diplomatic cables only after Theodore Roosevelt's death.What's past is prologue indeed.
Friday, December 17, 2010
Hey, don't blame me -- that's the exact headline in this Intrepid One exclusive:
Florida Bar has 3-way race for president-elect
Ok, so maybe there's a bit more to the headline, but I got a little fixated on the first part.
Boy is this blog going downhill fast.
I don't know about you, but I officially attended my 517th holiday party last night, and though I enjoyed them all I must say my friend David Markus really knows how to throw a first-class wing ding in his fancy new island oasis.
Indeed, here's a news report on the soiree, just to give you a taste of what you may have missed:
More than 2,000 guests attended the event on the man-made Palm Jumeirah island in the Persian Gulf. Robert De Niro, Janet Jackson, Denzel Washington and Lindsay Lohan were among them, while the British contingent included the Duchess of York, Sir Richard Branson, Dame Shirley Bassey, retail boss Sir Philip Green, television presenter Trinny Woodall and the singer Lily Allen.
They feasted on lobster and Middle Eastern mezze and the Veuve Clicquot champagne flowed freely.....
Security at the party was so tight that a two-mile exclusion zone was thrown around the island.See what I mean -- the good times are definitely back!
Have a great weekend, folks.
Santa Moreno just delivered an early holiday present -- Administrative Order 2010-151.
I know I know, it's hard to stay contained -- deep breaths, people.
Now don't get too excited, you don't want to break your new toy on the very first day, but here it is kiddies: there is now total and complete cosmic harmony between Rule 56 and the local rules with regard to the summary judgment briefing schedule!
Rejoice rejoice (we have no choice)......
Sorry I'm a bit late this morning, and for this off-topic post, but I wanted to say a few words about the unevenly brilliant director Blake Edwards, who passed away Wednesday at age 88.
Macleans writer Jaime Weinman describes Edwards as the "Genius Without Quality Control" and I think that's exceedingly apt.
How can a guy so perfectly capture the angst of an upper middle-class mid-life crisis as sweetly and knowingly as Edwards did in 10, yet bomb out so badly mining the same topic a decade later with Skin Deep?
It's no surprise I'm attracted to flawed artists, and thus I'm fascinated when incredibly talented musicians, actors, writers, painters, lawyers, judges or directors flame out or misfire in a spectacularly awful way.
Blake had an ability to be both radiantly sublime and astonishingly horrible, sometimes in the same movie.
RIP old man, and thanks for the laughs.
Thursday, December 16, 2010
He's a schmartie, that Judge Cope (pictured above).
Back in 2009 he realized that it's pretty stupid that a trial court can't reserve on prejudgment interest, like it can on attorney's fees, and if it does the whole darn question of prejudgment interest will be waived if an appeal is taken.
So he and the 3d suggested -- very politely of course -- that maybe kinda oughta you know the Supremes should perhaps revisit the issue, and indeed, to their credit, they have:
The application of the McGurn rule has resulted in the inadvertent waiver of prejudgment interest where the trial court, often at the behest of the parties, enters a final judgment but reserves jurisdiction to award prejudgment interest. Because we conclude that the trial court should be allowed to decide the issue of prejudgment interest separately, we recede from McGurn and answer the following rephrased certified question in the affirmative:Isn't it nice to see solid rationality and logic from our judiciary sometimes?
SHOULD A TRIAL COURT BE ALLOWED TO RESERVE JURISDICTION IN A FINAL JUDGMENT TO AWARD PREJUDGMENT INTEREST?In answering this rephrased certified question in the affirmative, our intent is to promote judicial economy and prevent unfairness to either party. We conclude that a final judgment reserving jurisdiction to award prejudgment interest is a final appealable order but that the trial court does not lose jurisdiction to determine prejudgment interest in a manner similar to that in which the trial court addresses attorneys‟ fees and costs.
Hey, neither do I.
But what I really like about this Order, entered today in the Checking Overdraft litigation, is that the Judge articulates in an intelligent, reasonable way why exactly these rogs can go off the rails and also how to fix that problem, adopting Judge Brazil's innovative burden-shifting approach from 1985.
Ahh yes, 1985 -- when many of us were strapping on Keytars, grooving to the Greg Kihn Band, and the only thing in contention was whether to wear the teal or lavender leg warmer before heading out with the Sony Walkman to go buy some of that tasty New Coke.
Wednesday, December 15, 2010
It's an frosty blistery day outside, but inside the bunker the robes are resplendently heated, the air smells like fresh gingerbread (Judge Emas has a new cologne!), and the coffee.....well it's cold, dark and bitter -- just how I like it!
Let's jump in:
Sotolongo v. Celebrity:
Do you want the good news or the bad news?
Anthony v. Perez-Abreu:
Oh boy, did I just read a fact pattern or the script from a Law & Order episode?
Married couple in law office getting divorced, financial records allegedly taken from office and given to one party's divorce lawyer, suit later brought against divorce lawyer receiving docs.....oy.
Apparently the suit against the lawyers lives on, though Judge Salter in concurrence advises Mr. Anthony against continuing to pursue it:
I write only to note several indicia of a terminally ill lawsuit that, while it may have survived a first and second brush with death, has no apparent cure in sight.
Those indicia are:
1. The appellant is an attorney who signed his own complaint and amended complaint (though later memoranda and the briefs here were signed by a junior lawyer in the small firm wholly owned by the appellant). “The old adage that ‘a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators.” Kay v. Ehrler, 499 U.S. 432, 438 (1991).The Judge strongly counsels Mr. Anthony against continuing the litigation and even recommends that he show his suit to an experienced litigator:
2. The cases arose out of (a) a dissolution of marriage proceeding brought by the former wife in 2004 and (b) the appellant’s subsequent claims against the former wife’s attorneys for allegedly counseling her to copy records from the appellant’s law office before the dissolution petition was filed. The emotional aspect of dissolution cases (particularly, as here, involving minor children) amplifies the possibility of professional misjudgment by anattorney/party. To compound the emotional aspect of the dissolution of marriage proceeding, the former wife had exploited her position as an employee in the small law office to clandestinely copy the otherwise confidential documents. She thus simultaneously sundered not only a longstanding marriage, but also a successful business relationship.
3. On the face of the amended complaint, however, there is no discernible claim of actual harm to a client of the law office or to the ongoing business activities of the law office. The alleged damages principally consist of increased legal expenses alleged to have been incurred by the appellant because of his need to litigate these matters against the former wife and her attorneys. Any such damages were under the appellant’s control—no litigation, no expenses. Many of the allegedly-photocopied records—appellant’s law office tax returns, for example—would have been subject to production as part of the parties’ financial disclosure to one another in any event.
[F]or the sake of the trial court’s docket, the ability of the appellant to devote his considerable experience to more productive endeavors, and “closure” for the parties and the two minor children, I will simply recommend that the appellant share the facts and his amended complaint with a detached, experienced trial lawyer before deciding whether to resume hostilities in the trial court after remand.It's also interesting to note that in the 2007 appeal of the underlying divorce action (which overturned language in the dissolution agreement that would have released the law firm subject to the current suit), Judge Schwartz vigorously dissented, arguing that the possible suit against the lawyers is purely hypothetical:
First, the most basic requirement for judicial activity does not exist in this case. This is because no one has been able to explain how the purported releasors can, let alone will, ever be the subject of a claim against them so that the extent or existence of any release is nothing more than academic. Thus, there is simply no "case or controversy" between the parties presented by this appeal.Not anymore, apparently.
You know that judge out in Virginia who just struck down the individual mandate in the new health care law?
The one who owns a stake in a GOP consulting firm that has directly worked against health care reform?
Turns out he wrote a memoir(!) in which very candidly explains -- boasts(?) -- about how he got to become a federal judge:
After Congress created a new judgeship for the Richmond Division in the Eastern District of Virginia in 2001, Hudson expressed his interest and picked up the support of the state's two Republican senators.
Hudson's description of the selection process candidly acknowledges its political nature. "Campaigning for a federal judgeship is almost as challenging as running for political office," he writes. "Rather than court voters, aspirants solicit endorsements from influential political activists with close ties to the senators, particularly the activists who raise the big money.
I always preach fitness and health, particularly for lawyers in stressful jobs, so I'm thrilled to see Tom Tew getting behind this concept and putting his time and energy into something so useful:
I'm sure Tom has all his lawyers in there, duking it out.
In fact, I personally would love to see DeMaria in the ring, watching him punch somebody's lights out.
(Actually, I've seen Joe take depositions so I know exactly what that feels like.)
Tuesday, December 14, 2010
We've already been through the use of exclamation points in blog posts, in orders, and much delight has been had along the way.
Now, suddenly, out of nowhere, the 11th Circuit has decided to weigh in on the exclamation point debate in a big big way -- oh hail, I'll let the 11th explain it:
Jaguar failed to plead the administrative exemption as an affirmative defense in its Answer. In the fourteen months between the filing of its Answer and the commencement of trial, Jaguar never moved to amend its Answer to include the administrative exemption. Jaguar also did not raise the issue of the administrative exemption during discovery. The only time Jaguar raised the issue prior to trial was by inserting it in one line of the Joint Pretrial Stipulation and in the proposed Joint Jury Instructions, to which Diaz objected. Jaguar did not raise the issue during the pretrial conference and the district court did not include the issue in its Omnibus Order Following Pretrial Conference. If ever there were a classic case of waiver, this is it!You don't say!!
(You can check out the docket below here).
Luke Campbell Verdict Form
A fresh read (along with your coffee).
Note -- excessive use of exclamation points temporarily suspended due to mockery by David O. Markus.
A fresh read (along with your coffee).
Note -- excessive use of exclamation points temporarily suspended due to mockery by David O. Markus.
Monday, December 13, 2010
I'm pretty sure any media discussion of the Gators or their various sports programs requires a "reax" quote from prominent Gator booster (oh yeah, also lawyer) Danny Ponce:
“This is one of the great young coaches in the business,” said Danny Ponce, a UF trustee and Miami attorney. “I think it’s a great decision.”Not to be outdone, WPB litigator Bob Merkel agrees:
Bob Merkel, a prominent West Palm Beach lawyer, expected former Meyer assistants Dan Mullen (Mississippi State) or Charlie Strong (Louisville). But that doesn’t mean he’s disappointed in Foley’s decision.
“At first, I said , ‘Holy cow.’ You would have though Mullen or Charlie would have been great,” he said. “But the more I read about the new coach, I’m impressed with him.
“This guy seems like he’s pretty qualified.”(These guys often show up together on this topic btw.)
You Canes booster lawyers (and yes, we know who you are) better get moving (ok, looks like you already have).
Sunday, December 12, 2010
Luke Cambell Evidence Lesson
Trial again on Monday before Judge Cooke, and on the eve of week two new counsel Richard Brodsky submits a tutorial on the difference between authenticity and admissible hearsay:
Trial again on Monday before Judge Cooke, and on the eve of week two new counsel Richard Brodsky submits a tutorial on the difference between authenticity and admissible hearsay:
The issue is whether the two returns of service, in the forms of affidavits from a process server, are admissible. In denying the Defendant’s objection to the admissibility of these documents as hearsay, the Court stated that they are self-‐authenticating, and therefore admissible under Fed.R.Evid. 901. Respectfully, this is a fundamental misconception of the purpose of Rule 901.I feel like I'm back in my evidence class!
Saturday, December 11, 2010
Miami attorney Carolyn Zegeer's dream to be the next Paradise Hunter has just moved one step closer to reality, courtesy of none other than former Styx guitarist Tommy Shaw:
Tommy Shaw of Styx (co-writer of two songs in Carolyn's video) said, "Carolyn is perfectly qualified for the job. Add to that her on-camera comfort, good looks and energy level, and it appears that this show is more or less her life story. She has the kind of natural curiosity and joy of life that makes this video look like a trailer for the actual show."Ok, I'm a bit of a Tommy Shaw chronic, so I have no idea how I missed identifying his distinctive sound in Carolyn's video but now it's unmistakable.
I was right there with him on Girls With Guns, I hoped for the best with the Remo Williams soundtrack, and I even held my nose and supported the Damn Yankees project.
So Carolyn, your good taste in musical partners has just earned you another vote.
(And yes, that is in fact me on the Keytar).
Friday, December 10, 2010
Hi kids, can you believe it's actually Friday?
What a week.
RIP Judge Pineiro. There are some wonderful tributes over at Rumpy's -- take a look.
Congrats to Carlos Deupi, the new President of the Miami Finance Forum:
The Miami Finance Forum (MFF), a non-profit trade association of investment and finance professionals in South Florida, today announced the election of Carlos Deupi as the MFF’s new Chairman. Mr. Deupi, a corporate lawyer at the law firm of Hogan Lovells US LLP in Miami, will serve for a one-year term beginning in January 2011.Carlos is a heavy dude and we wish him well in leading the M
I love this article about the importance of face to face contact in building business relationships. The authors recount a recent study reported in Psychology Today:
Researchers instructed each team to bargain entirely through e-mail, but half the subjects were secretly told to precede the negotiation with a brief getting-to-know-you chat on the phone. The results were dramatic: Negotiators who first chatted by phone were more than four times likelier to reach an agreement than those who used only e-mail. In the study, which appeared in the Harvard Negotiation Law Review, subjects who never spoke were not only more likely to hit an impasse, but they often felt resentful and angry about the negotiation.Here are the tips they suggest for creating stronger bonds with your colleagues:
- Assess who is important to you in your professional life, those people with whom you will need a relationship strong enough to weather any storm.
- Consciously monitor how much e-mailing, texting or tweeting you rely on for building these relationships.
- Make sure that at least once a month you either speak with these people by phone or see them in person! The latter is better, even if it entails travel.
- When you do connect in person, leave enough time to communicate in greater depth so that it really strengthens your relationship. Enjoy yourself when you get this chance to be up close and personal (it is contagious).
- When you are in human contact, keep any electronic devices far enough removed so that these devices do not interfere with the conversation. Even the slightest eye movement to see who is texting, e-mailing, etc. gives the other person the impression that someone else is more important to you.
- Find media-free time each week to counter your addiction to staying connected online. You will probably find out you like it.
- Stay vigilant in your efforts; technology is amazing, but it is also seductive.
Speaking of seductive, I'm off for some early windsurfing because...well, just because.
Have a great weekend!
As power begins to shift in Congress, judicial appointments continue to lag, with little to no public attention or even interest.
Who's to blame?
Some say Obama is too slow on his nominations, others that a partisan Congress is holding the nominations hostage.
At this point I'm sick of excuses and just want some action. The Economist takes a hard look and pretty much agrees:
Wherever the fault lies, the backlog is a serious problem. The Judicial Conference, the policymaking body of the federal court system, ranks 50 of the vacancies as “emergencies”. These include district judgeships with 600 or more cases filed and moving nowhere, or 700 or more filings for a circuit panel. The eastern district of California has a thousand-case pile-up. Border courts in Texas, dealing with drugs and immigration cases, are overwhelmed. The small but important district of Delaware, where many companies are incorporated, is making do with just two federal judges, causing havoc in the various commercial cases. Bill Robinson, the incoming president of the American Bar Association, says that the quality of justice inevitably suffers: “Witnesses die, memories fade.”Sure, all of a sudden Obama's going to develop a backbone and push the GOP to brinkmanship on this issue?
But the issue fails to exercise the general public—or at least, the general Democratic public. After judges seemed to get too uppity in the 1960s and 1970s, Republicans successfully turned “activist judges” into bogeymen, creating bodies like the Federalist Society to nurture conservative legal talent. And Mr Bush effectively used the bully pulpit to call for an “up-or-down” vote on all his nominees at once, leading to a confrontation but ultimately a compromise with Democratic senators in 2005. Dozens of Mr Obama’s nominees are still waiting for something similar.
I'm not holding my breath.
The Intrepid One™ breaks an amazing story of a botched lawsuit, botched again, then apparently botched again:
The malpractice case sprang roots 23 years ago when Jacobs Wind Electric and principal Paul Jacobs first began pursuing legal action against the Florida Department of Transportation in a patent case.Ok, question for Tom -- if you admittedly blew the deadline and it was "our fault" the case got dismissed for want of prosecution, why fight liability right up until the date of trial? Why not focus on damages and get the thing quietly settled?
Jacobs and his father invented a tidal gate that prevented water stagnation and debris accumulation in waterways.
Two years after allegedly discovering DOT was using the system in 1987, the plaintiffs sued the state in federal court for patent infringement. They later brought suit in Hillsborough Circuit Court, hiring Shahady, then with Houston & Shahady in Fort Lauderdale, in 1998. Soon after, Shahady merged his firm with Adorno & Yoss.
According to Paul Jacobs, Shahady and his firm took no action in the state case from 2001 to 2003. As a result, the suit was dismissed for "want of prosecution." According to the Florida Rules of Civil Procedure in effect at the time, lawsuits that lay dormant for more than one year can be dismissed. That rule has since been changed, and courts automatically notify parties before suits are dropped.
The dismissal was affirmed by the 2nd District Court of Appeal in 2004.
In 2005, Paul Jacobs sued Shahady and Adorno & Yoss for legal malpractice.
"Defendants' conduct in allowing the underlying lawsuit to lie dormant for a period of over one year … was a breach of defendants' duty to exercise reasonable care, skill and diligence on plaintiffs' behalf," the complaint stated.
If Shahady had done something during the year, the Jacobses could have recovered more than $1 million, representing the DOT's savings by using the device, they alleged.
Adorno fought the case right up until the trial last summer when the firm conceded liability. After a one-week trial, jurors found for the Jacobses in July, awarding them $300,000 plus $150,000 in attorney fees. Broward Judge John Murphy III added pre-judgment interest for a total verdict $1.5 million.
Even though the law firm admitted liability, it's appealing the verdict because it does not believe the dollar amount is fair, Shahady said.
"It was our fault that the suit got dismissed," Shahady said in an interview. "Mr. Jacobs did not cause this problem. But we felt pretty strongly that there was no basis for the damage award in terms of dollars."
It gets worse:
The circumstances surrounding the garnishment of the firm's Wachovia bank account was another case of Adorno & Yoss dropping the ball. The firm should have posted a bond to cover the judgment pending appeal, but "our attorney was on vacation, and it fell through the cracks," Shahady said.Just like the underlying case!
It gets worser:
He called the incident "one of those unfortunate things" and said it would not have happened if the Jacobses' case were in Fort Lauderdale rather than Tampa, and if it happened six months later after a change in the Florida Rules of Civil Procedure.I don't like to be too negative, but what does the court's proximity to your law office have to do with whether or not you allegedly calendared the date a case you are handling could get dismissed for want of prosecution?
Also, why blame the Rules for not informing you of that date?
It gets even worser:
Even though the law firm admitted liability, it's appealing the verdict because it does not believe the dollar amount is fair, Shahady said.Please don't.
Tom, you're a good lawyer. These things happen. Maybe take what has happened so far in this case as a sign that perhaps you all should consider a different approach?
I also don't see why Larry should feel bad about garnishing the firm to protect the judgment:
"Until the garnishment was issued, senior management at the firm would never talk to me," he said. "I wish they had handled things differently from beginning to end."What's shocking about this? Larry is obligated to protect the judgment on behalf of his client, not make sure employees at Yoss get paid from a diminishing set of funds.
Kellogg wound up releasing his garnishment the next day, saying he felt bad that employees did not get paid. At that point, the bond was posted.
An outside observer who did not want to be identified said he was shocked that Kellogg would garnish a law firm's bank account, particularly on payday.
But Kellogg said he immediately dropped the garnishment when he found out employees were affected. "I worked tirelessly on it," he said.
And I love how no one allegedly would reach out from Yoss to settle this thing directly with Larry. Instead you appear to be fighting tooth and nail, contesting liability, forcing the matter to go to trial, losing the trial, then appealing the judgment.
Then Julie finds out about it and you get to relive it all over again in the DBR.
Or is there another side to this story that I'm missing? Someone help me out here.
Thursday, December 9, 2010
I guess that's good news?
Read the order and see for yourself:
Interestingly, and not surprisingly, the response starts with attacking the Court and then jumps into the argument made at the hearing. The first paragraph of the order to which this is a response begins with the fact that "[N]o law has been cited for the filing of "objections" to a hearing...." and "[T]o the extent the Court construes same as motions (sic) again they violate Local Rule 7.1(a)(1)". This is totally ignored in the response. Apparently things like following the law and the local rules take a significant backseat to ranting and raving and attacking the Court. Nonetheless it is those very rules and laws that govern our practice and procedure.It goes on (downhill?) from there.
The ranting includes using a statement made by the Court after the plaintiffs filed their objections to the hearing (in D.E. 1094) as justification for the filings they made before any such statement was made!