Monday, January 31, 2011

YEAH -- Obamacare Ruled Unconstitutional!!

Ok kids, here is Judge Vinson's 78 page order finding that whole Obamacare thing a bad nightmare, much like the last season of Dallas:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
 Ok, I'm really digging the explicit Tea Party reference.

I stopped caring about the Commerce Clause when I left law school, so I won't pretend to be a sudden expert on it now.

And I'm still analyzing the opinion.

However, on first blush, I think the Judge has written a thoughtful, comprehensive order, one that draws deeply on history and context and which attempts in good faith to tackle the parties' arguments head-on.

This is exactly what a district judge should do, regardless of how one may feel about the outcome.

Say what you want about Judge Vinson, but this comports with my personal experience with him.  He is straightforward and intelligent, tells you exactly what he thinks and where he is coming from, and tries to engage you on the merits without excessive rancor or inflated "judge-itis."

Dwyane Wade Charter School Lawsuit Survives Motion to Dismiss.

Wade Charter School                                                                   

Dwyane Wade's charter school project is embroiled in a legal dispute with an entity that alleges it was supposed to provide consulting services and help develop charter schools for 20k a month, but alleges it has not been paid.

Judge Marra has denied defendant's motion to dismiss the complaint, which alleges unjust enrichment in addition to the usual contract and quasi-contract.

I happen to like the simple, straightforward way that Judge Marra deals with unjust enrichment and Rule 8(a):
Next Generation next argues that Lichfield failed to assert all of the ultimate facts necessary for its unjust enrichment and quantum meruit claims. Specifically, Next Generation contends that Lichfield failed to allege the specific services, the dates that the services were provided, and what benefits Next Generation retained.

The essential elements of unjust enrichment are “(1) a benefit conferred on upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Circ. 2009) (quoting Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.Dist.Ct.App. 2006)).

In count IV of the complaint, Lichfield alleged, in part, that:

45. Plaintiff conferred a benefit upon NEXT GENERATION, which services and materials were appreciated and accepted by the Defendant NEXT GENERATION that resulted in a substantial benefit to NEXT GENERATION thereby.
46. Defendant NEXT GENERATION accepted and retained the benefits of LICHFIELD’s consulting, public-relations, political and other related services to and for the Defendant under circumstances that would make it inequitable, unfair and unjust for Defendant to do so without paying the value of said benefits and
47. Defendant NEXT GENERATION knew that LICHFIELD expected to be compensated for its efforts in an amount not less than $20,000.00 per month for a 12 month period, i.e., August 2009-August 2010.
48. Plaintiff LICHFIELD fully performed said services and provided all required consulting, public-relations, political and other related services to and for Defendant, which resulted in a substantial benefit to Defendant NEXT GENERATION.
Compl. ¶45-48.

Federal Rule of Procedure 8(a) only requires that a plaintiff include a “short and plain statement of the grounds for the court’s jurisdiction”, “a short and plain statement of the claim showing that the pleading is entitled to relief”, and “a demand for the relief sought.”  Fed.R.Civ.P. 8(a). Clearly, Lichfield fulfilled the pleading requirements for the unjust enrichment count since it properly alleged that a benefit was conferred upon Next Generation, Next Generation appreciated the benefit, and the circumstances make it inequitable for Next Generation to retain the benefit without paying for it.
This isn't rocket science, people.

Things That Make You Go "Hmmm."

Let's see....wake up South Florida!

John Pacenti is a fantastic reporter, and I've certainly had my fun with Big Lew, but I sort of agree with Joe DeMaria regarding the Lew Freeman emails that appear on the front page of today's DBR.

They're entertaining as you would expect -- and naturally involve food and bowel movements -- but where's the newsworthiness?

They seem private to me and I feel somewhat uneasy reading them.  That doesn't mean they shouldn't be published if there's some larger point to them, but I guess I'm not seeing it at the moment.

Or maybe I'm missing something -- what do you all think?

Other exciting news -- the guy in charge of handling US renditions to Egypt is now Mubarak's new VP -- that definitely makes me go "hmmm."  And even Dr. Zhivago says it is time for regime change.


But this is my favorite "hmmm" moment of the morning (from today's DBR but not online):
Robert C. Josefsberg, a partner with Podhurst Orseck in Miami, has been named to the steering committee in the Chinese Drywall multidistrict litigation in New Orleans, replacing outgoing partner Victor Diaz.
Double hmmm.

Saturday, January 29, 2011

Our Long National Dental Nightmare is Over!

Let me share a secret -- Dennis Kucinich sends me emails.

Why, may you ask, am I email buddies with the Ohio congressman?

Is it because of his principled, courageous opposition to endless and pointless war?

Or because he was one of the very few who voted against the Patriot Act?

Or his positions on gay rights or universal healthcare?

Not really.

Hmm, where was I?

Oh yeah, I was saying I received an email from the Congressman just last night, explaining why he is settling his olive pit sandwich lawsuit:
 Though I would prefer to focus your attention on my work dealing with the profoundly important issues that face our nation, such as job creation, getting the economy back on track, and ending the wars in Afghanistan and Iraq - it seems that some are more interested in discussing my personal dental issues. Given the degree of public interest you should know some details:

This injury required nearly two years, three dental surgeries, and a substantial amount of money to rectify.

The legal action you have heard about was filed due to the severity, expense and duration of the dental injury, the complications which followed and which still persist.  I wanted to resolve this matter without filing a lawsuit. The events below involved numerous dental visits, more than are detailed in this summary.The dental injury set in motion a chain of dental and medical events.

When I bit into the olive pit, (unbeknown to me at the time), upon impact the tooth split in half,  vertically through the crown and the tooth, below the level of the bone. Externally there was no evidence of a break. This was not about aesthetics. The internal structure of the tooth was rendered nonrestorable.Although the pain was excruciating, I shook it off and  I went right back to work.   

This tooth is a key tooth which anchored my upper bridgework. The injured tooth and the bone above it became infected. I took a course of antibiotics for the infection, had an adverse reaction to the antibiotics which caused me to have an intestinal obstruction and emergency medical intervention.

Later, my dentist referred me to a specialist who informed me that the damaged tooth had to be removed.  A third dentist removed the tooth and I was fitted for a temporary partial. I waited for the bone to heal. An implant was placed, but it failed. Many months later still a second implant succeeded. My bridgework had to be completely reconfigured, a new partial was designed, so this injury did not affect only one tooth, but rather involved six (6) replacement teeth as well.     A new crown with a new precision attachment was engineered and put in place. To clarify, no dental expenses were covered by any health plan, nor did I have dental insurance that covered the injury, which, until it was resolved, affected my ability to chew food properly.
Okay, this is WAY too much information.

It's starting to feel like I'm listening to my grandparents prattle on about their doctor visits over a bagel in Boca -- enough already.

There's no need to be defensive about filing a lawsuit -- indeed, there's nothing wrong with litigation if there is no other way to resolve a dispute.

And it appears that it took the filing of the suit to get the responsible parties to come to the table.

Again, that's a positive.

So use your repaired teeth to give your wife a smooch and try to get in the news for something else next time.

Friday, January 28, 2011

Jim Ferraro's Cleveland Firm Files For Chapter Miami.

The legal maneuvering continues in the long-simmering dispute between Jim Ferraro and the widow of the ex-partner of his Cleveland based law firm:
Kelley & Ferraro filed for Chapter 11 reorganization on Wednesday, Jan. 26, in a move that partner Tom Wilson said is aimed at resolving the nearly 5-year-old civil litigation pending against it.
The timing was not coincidental, Mr. Wilson said, as Wednesday was the day civil proceedings brought by Lynn Kelley, widow of firm co-founder Michael Kelley, were to resume in Cuyahoga County Common Pleas Court. Mr. Wilson said the bankruptcy filing automatically stayed the civil proceedings.

Currently, it's business as usual at Kelley & Ferraro, Mr. Wilson said. He said the firm filed for bankruptcy protection from creditors to do what's best for its clients.

The petition was filed in the Southern District of Florida, U.S. Bankruptcy Court, in Miami. Partner James Ferraro lives in Florida, and Mr. Wilson said bankruptcy counsel advised Kelley & Ferraro to file there.

Ms. Kelley's lawyer, Bill Wuliger, claimed Thursday that the firm's filing in Florida isn't “kosher” because the firm operates in Cleveland.

The bankruptcy filing is “extremely injurious” to Ms. Kelley and her son, and to the law firm and its clients, Mr. Wuliger contended. He called it an “atomic bomb on the Kelley family.”

“We're angry, we're upset, but we will survive and we will eventually, I believe, rectify the wrongs that have happened,” Mr. Wuliger said. 
 The case is before Judge Mark and you can see the docket here.

I hope Jim at least got a nice parking spot!

Herb Stettin to Russ Adler: You Now Work For Me!

I recently had the great pleasure of rewatching Jimmy Caan's best film, Thief, where he plays a Chicago freelance diamond thief dreaming of a better life who gets sucked into working for a local mob kingpin for what Caan thinks is one final heist.

Of course the mobster, brilliantly played by Robert Prosky, has other, longer term plans for the profitable crook.

Naturally we are in a very different context, yet for whatever reason I'm reminded of this superb story line when I read the curious settlement terms reached by receiver Herb Stettin and Russ Adler in the Rothstein bankruptcy, which involves Russ handing over a portion of his settlements or judgments should he be successful in future cases:
The settlement stipulates Adler will pay off the settlement by liquidating a $90,000 IRA and by providing liens on any attorney fee recoveries. The lien is 50 percent on lawsuits Adler prosecuted while at RRA and 15 percent afterward.
So now they're in business together?  And Russ is now working to pay off the settlement by trying to settle cases he either has in the hopper or may one day have in the hopper.

This is allegedly due to his current financial situation:
Critical to determining settlement was a detailed analysis of the Adlers’ current financial condition, which based upon mediation related financial disclosures revealed that the Adlers have no existing bank, securities or other accounts upon which to execute, no equity in their home, leased vehicles and no other liquid non-exempt assets that could be used to satisfy any potential judgment. Further, it appears as if the Adlers may be subject to an IRS notice of lien or other action in an approximate amount of $234,000 and Mr. Adler could be facing other types of exposure in potential Florida Bar or criminal proceedings. Thus, the Trustee could have spent a significant amount of money to prepare for and conduct a lengthy trial which he believes would have resulted in a favorable jury verdict, but the likelihood of a successful collection on any such judgment would have proven difficult.
So who's the winner here -- is this a brilliant move by Adler, a smart move by the trustee, or something else entirely?

Thursday, January 27, 2011

How Does "Ruden Yoss" Sound?

 Hey, I'm trying to think outside the box:
Financial troubles at Ruden McClosky are deepening, with the Fort Lauderdale-based firm suspending all capital payouts to former equity shareholders.

In a letter to about 50 to 60 former equity shareholders Saturday, co-managing partners Michael Krul and Carl Schuster said the firm was declaring a "moratorium" on all capital account repayments. The three-paragraph letter stated the firm would review the situation "later in the year."

The survival of the firm has been a subject of open debate for months. Sources at two law firms that were approached said Ruden has been shopping for merger partners.
Aren't the repayments a contractual obligation?  How can you declare a "moratorium" on paying back a debt?

Oh well, I don't do transactional work.

Too Bad About That Whole "Separation of Powers" Thing.

Listen, "separation of powers" was an interesting experiment, maybe it did kind of work briefly(?), but really it's time we just gave it up and moved on:
With Florida's legislative leaders still chafing from recent defeats before the Florida Supreme Court, Republican lawmakers signaled Wednesday that they want to strip some of the court's powers.
Their target: The court's authority to write rules governing practices and procedures across the statewide judicial system.
Republican members of the House Civil Justice Subcommittee accused the Supreme Court of routinely overstepping its authority in recent years by issuing rules that amount to substantive policy changes rather than merely addressing issues of procedure.
Among the rules they cited: One that established a maximum time to go to trial – 175 days from a felony arrest – after which a case must be dismissed as a violation of a defendant's right to a speedy trial; and another that required juvenile defendants be given a chance to confer with a lawyer before they can waive their rights to counsel and enter a plea to a crime.
"We've got a Supreme Court that's doing an end run around the Legislature," said Rep. Bill Hager, R-Boca Raton.
Yeah -- indefinite detention is way better, and why does a kid need a lawyer before the police beat a confession out of him he confesses to a crime?

Procedural safeguards are so last century!

In other news, this evening Spencer Aronfeld will explain to FIU law students why they shouldn't cry the second they graduate.

Good luck Spence, you've got your work cut out for you.

Wednesday, January 26, 2011

State Thinks Blowing Millions in Fees and Losing Millions in Damages Means They Won!

You gotta love litigating against the state -- it's like fighting with a headless chicken:  there's no one in charge, no one accountable, no one making "hard" decisions that involve long-term thinking, and absolutely -- and I mean absolutely -- no one counting the money.

That's how you can wind up with this absurd decision by the 4th DCA, which the DBR reports on here,  where the court actually has to explain to the state that spending tons of money trying and losing the citrus canker case does not mean that the state somehow "won" and that they therefore are entitled to -- of all things -- fees(!):
We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.
 This is mind-numbingly stupid.

In fact, I can't even begin to put in words how asinine this argument is and that the state actually went ahead and paid Wes Parsons good taxpayer money to take it all the way up on appeal.

God I gotta do something to calm down and take my mind off this drivel: 

Ok, it's working -- I'm starting to feel better now.

3d DCA Watch -- Judge Shepherd Appeals to a Higher Authority!

Does the 3d feel like it's in a funk these days?

Not too many opinions being released, fewer dissents, the swagger seems to be gone or dissipated, it's as if the 3d is barely talking to us.

Is it something I said?

Anyways, let's roll tide:

Morton's of Chicago v. Bermudez:

Old man falls in restaurant -- and it's not even captured on YouTube or anything!

Turns out the temporary obstructions need to be near where the guy fell, who knew?

Arkiteknic v. United Glass Laminating:

Note to judges who are planning to sanction lawyers for blowing deadlines -- there are these little things called the "Kozel factors" -- please try to familiarize yourself with them first.

It's not Venetian Salami, but it's close.

Willens v. Garcia:

Son takes continual care of invalid father for 20 years -- gets repaid with huge property tax reassessment on Dad's house once father dies.

Judge Shepherd channels his inner Hebrew National:
Mr. Willens’ reward for his two-decade sacrifice in the name of his father lies with a higher authority.
Ok, I'll play -- the Florida Supreme Court?

(What, there's something higher?)

Allen Stanford Receiver Wants Miami Heat to Pay Money Back.

Oh I long for the days when we used to make fun of R. Allen Stanford.

Can anyone forget Bowman Brown's amazingly accurate "spidey sense" and deft way with a self-deprecating anecdote?

God I miss that material.

Well, there is hope:
The National Basketball Association’s Miami Heat was sued by the R. Allen Stanford receivership for allegedly collecting more than $1.3 million in ill-gotten gains from Stanford’s alleged fraud.
“The payments to the Miami Heat parties are related to Stanford’s sponsorship, advertising and promotional activities,” Ralph Janvey, the court-appointed receiver, said in a complaint filed today in Dallas federal court.
What is it with crooks and sports teams?

Remember how Scott Rothstein blew wads of dough getting close to sports stars so he could pretend he had a jump shot or could throw the ball just like Dan Marino?

Short Jews, what can I say.

Tuesday, January 25, 2011

Shorter Gene Stearns: It's All Judge Ungaro's Fault.

I understand there may be a certain amount of settlement posturing to all this, but is Gene going overboard with his very public and very direct "Judge Ungaro screwed up" approach to appealing the BankAtlantic securities verdict?

I mean, this is a guy who already said it was the worst-tried case he's ever seen in his life, and that includes every episode of Judge Judy plus that old Boston judge from The Verdict (ok, I added the last part).

In today's DBR, Stearns continues to focus exclusively on Judge Ungaro:
"I don't blame the jury," Stearns said. "The judge instructed them that Alan Levan made four false statements. And that is, I believe, unprecedented for a judge to tell the jury that one of the defendants made false statements."
Gene also didn't like how the Judge handled the damages expert:
Stearns said Preston's testimony about damages rested on several factual assumptions that the jury did not assess: "The judge refused to allow the jury to decide the factual questions upon which her testimony was predicated. Very puzzling."
Puzzling?  It's downright perplexing!

 In their response, posted here, the plaintiffs take this argument head on:
Even though the Court was not required to submit a special interrogatory regarding Preston’s assumptions to the jury, the jury clearly had the opportunity to consider and reject the assumptions. Preston’s assumptions (found at paragraph 10 of her report, PX726) were published to the jury during her testimony. Trial Transcript (“Tr.”) 2668-69. Defendants vigorously cross-examined her about the assumptions and the significance if Plaintiffs failed to prove them.6 Moreover, the instructions given by the Court were absolutely clear that unless the jury first found liability the issue of damages was not to be reached (DE 635 at 23) and specified that it was up to the jury to decide whether it would rely on the expert’s opinion. Id. at 6. Given these instructions, it is implicit in the jury verdict awarding damages based on Preston’s testimony that the jurors found that the factual assumptions she relied on were proven.
If Judge Carnes gets this, given his penchant for quoting old song lyrics, I hope he updates his references a bit (I've given him a hint above).

Exodus Continues at Yoss.

The slow yet steady drumbeat of departures continues at Adorno & Yoss, according to the ever intrepid Julie Kay:
Neil Linden, head of business litigation at Yoss LLP, is moving to GrayRobinson's Miami office and bringing two lawyers with him.
The nine-year veteran of Yoss, formerly Adorno & Yoss, is leaving with shareholder Phillippe Deve and associate David Levin on an undetermined date.
Linden, national chair of business and commercial litigation department at Yoss, said his departure is due to a conflict that developed over a large institutional client of his and a new client with the firm. The clients were not disclosed.
"We had a conflict we could not resolve," he said.
Hmm, I can't speak to the details of this particular conflict, but I know one conflict that would be difficult for any law firm (in the generic sense of course) to overcome -- I would like to be paid vs. sorry but we really can't pay you right now.

If I were the good folks (folk?) at Yoss, I would consider an entire rebranding overhaul.

For example, it's kinda weird or perhaps even ghoulish that the firm website is still

And the "Yoss" thing feels incomplete and awkward, doesn't it?

It'd be like if Abbott and Costello suddenly just became "Costello!" -- ok Lou, we wish you well, but maybe you need to go in an entirely new direction?

Monday, January 24, 2011

11th Circuit Rules Against "Peek-a-Boo" Lounge!

The 11th Circuit, with Judge Cooke sitting by designation, has ruled against a Bradenton strip club, the "Peek-a-Boo" lounge, which had challenged a ridiculous ordinance designed to take all the fun out of life:
The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2-2.5-18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2-2.5-2. Employees appearing semi-nude, however, must “remain[] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.””

That would mean at least half the parents at any South Florida children's birthday party held near a body of water would be in violation of this ordinance.

Now that you mention it, I am in violation of this ordinance right now.

But the First Amendment was not designed to protect a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, according to Judge Marcus, mostly because of the "secondary effects" (no, not that kind).

The district court took extensive evidence and, indeed, the County spared no expense, sending in a top investigator, Tom McCarron, to find out exactly what goes on in these clubs:
At Pandora’s Box, Mr. McCarren was able to pay a dancer for a private dance, during which the dancer removed the tape over one of her nipples and allowed Mr. McCarren to touch her breast, buttocks, and genital area. At Paper Moon, Mr. McCarren was able to pay a dancer to go into a back room with him, where she removed all clothing except her G-string and allowed Mr. McCarren to touch her breasts.
Mr. McCarren, you sir deserve a medal for your fierce and relentless pursuit of the facts.

(Or at least a nice massage -- oh wait, that's your next case!)

But in the end, it was Mr. McCarren's dedicated muckraking that made all the difference:
The bottom line (ed. note -- ha ha) is that the County has presented a substantial body of evidence to support its rationale for adopting the ordinance. Peek-a-Boo has failed even to address much of that evidence at all, and it has failed to show that the County’s rationale or this body of evidence was unreasonable.
In other words, "Peek-a-Boo" has bottomed out.

Disabled Attorneys Can't Get Into WPB Federal Courthouse.

Aren't the judges supposed to be enforcing the ADA, not possibly violating it:
Having spent 35 of his 59 years in a wheelchair, Boca Raton attorney Bob Pearce knows the needs of the disabled are often ignored. But he didn't expect to have his rights violated at the federal courthouse.
A routine hearing turned ugly when security guards blocked him from parking in one of six empty handicap spaces in the sprawling lot in front of the downtown courthouse.

The alternative they suggested, a public lot nearby, left him stranded atop a steep hill. He made it to the hearing after flagging down a stranger, who grabbed the handles of his chair and wheeled him safely down the incline.

But he was outraged. So was the judge.

"It's disgraceful," U.S. District Court Judge Daniel Hurley said.

"The federal courts are the institution of government that enforces the Americans With Disabilities Act," he said. Instead, it appears it is violating the spirit, if not the letter, of the nearly 21-year-old landmark legislation that was designed to break down barriers and open up opportunities for the disabled.

And although the situation at the federal courthouse in West Palm Beach is problematic, Pearce and others said it's not unique. The rigors disabled people face getting to the federal courthouse in Fort Lauderdale aren't much better.
Hold on -- everyone faces difficulty getting into the Fort Lauderdale federal courthouse.  And it only gets worse once you actually get inside that thing.

But enough with these post 9/11  "berms" and "blast barriers" -- why does it have to feel like downtown Baghdad when you try to enter the old 70s federal courthouse (the Atkins courthouse) where all the mags are now?

That building already has plenty of problems from an architectural standpoint -- it's time we remove the barriers so it at least looks like a building where citizens are not actively discouraged from entering.

It's particularly ironic for that structure, given its steps, open courtyard and expansive design -- now all tightly closed with metal fencing and prominently surrounded by blockades, perhaps to prevent mad process servers from trying to ram their way into that crappy coffee shop upstairs.

Friday, January 21, 2011

SFL Friday -- Saying Goodbye to the Miami City Club.

Say what you will, but I personally will miss the passing of the Miami City Club:
One of the last vestiges of the old Downtown Miami social scene is coming to an end.
The Miami City Club in the Wachovia Financial Center is closing Friday and will be converted into office space. Real estate firm Optima Ventures has signed a lease to move into the space on the 55th floor of the iconic building that is the tallest office tower in Florida.

It's not a huge shock. Membership at the Miami City Club had dwindled to about 280 members from nearly 900 in its heyday. Most days lunchtime crowds were thin. An experiment as a private cigar club failed and the club went back to its roots in 2009. Recently, they were offering monthly memberships with no initiation fee to lure members. 

What can I say?

I liked the boozy atmosphere, the waiters in white linen who helped serve the buffet, invariably consisting of some kind of "corn salad" and various meats and greens and so forth, all served with bonhomie, I will miss them all.

I will miss the exclusive passage to "hidden" rooms, serving the same exact food as what was available in the main room, I'll miss "adding it to my account" as I did so often, hoping the firm will pick up my tab, I'll miss the views, the good times, the parties, the turkey vultures hovering over my meal.  I'll miss it all.

I will especially miss the staff, the long-timers who suffered through various regimes, changes in orientation, all to find that the business model was just not going to happen any more.
I also have a suggestion for the wide open space on the 55th floor -- food trucks, lots and lots of food trucks.

In fact, I propose we serve the exact same food -- except we serve it from various food trucks sprinkled through the space on the main floor, making it "exciting" to have a corn salad from a food truck, "exciting' to have several small burgers (aka "sliders") served from a food truck literally in the middle of the hallway where the club used to meet their guests, and then finishing with a "gourmet pizza" and "fish taco" coming right out of the kitchen, except served from a "Fish Taco Food Truck" strategically placed to obscure everyone's view.

The food will taste so much better that way.

Viva Miami!

I Get Paid By the Exclamation Point!

Well, I'm sure sometimes it must seem that way.

But they certainly have their uses.

For example, here's an excerpt from a sanctions order in a case that, if you read this blog, you may have heard me mention once or twice.....
What that response does not address, however, is that plaintiffs, themselves, reinforced that understanding...after the hearing! . . . . Apparently the Court was not the only one besides the defendant that believed there were only two issues remaining!  This Court is completely unable to reconcile what happened prior to and including plaintiffs' only filing of August 27, 2010, with the position plaintiffs now attempt to take before this Court.  It is, quite simply, astonishing!
Yes, I agree, this whole case is astonishing.

The Court then requires plaintiffs, over the threat of a $5k a day penalty, to sign the disputed settlement agreement:
5  Plaintiffs shall execute same without any additions, corrections, deletions or extraneous markings of any kind (ed. note -- how about a smiley face?) and return same to defendant within five (5) days of receipt of same.  A return of the release with any of these 'changes' shall be deemed by the Court to be no return at all.

6. Based on a finding of Contempt, a fine of $5000, per day, will be imposed for every day after the five (5) days said receipt is not returned, properly executed.

Question -- what is the point of compelling an actual, physical signature -- stray mark-less and properly executed (whatever that means) to a settlement agreement?

Wouldn't it be sufficient for the Court to simply find that the parties reached an enforceable agreement and order compliance therewith?  What does the forced signature/properly executed/no stray marks add?

Oh well, that's why I just write up these stupid blog posts.

Plaintiffs' request for stay is equally amusing:
This Court's Order puts Plaintiffs between a rock and a hard place -- sign the settlement agreement, potentially relinquishing Plaintiffs' rights on appeal, or suffer "$5000/day" in fines and reserves jurisdiction for yet more fines as the price for exercising one's constitutional rights to review an order of a judge.
Well, I guess if you put it that way.....

Strategic "Shotgun Pleading" Defense Tragically Misfires.

I always say file a motion that won't be a complete and utter waste of time for everyone involved.

That's sort of a baseline rule of thumb that we like to practice by here in SFL land.

Well, take a gander at this Order from Judge Marra and judge for yourself if the baseline was hit in this case:
Defendants Planet Kids, Inc., Planet Kids at Cypress Lakes, Inc., Planet Kids II-IX, Inc., Planet Kids XII, Inc., Planet Kids XIV, Inc., Planet Kids XVI-XVII, Inc. and Manuel Sarriea (“Defendants”) move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the sole basis that the Complaint is a “shotgun pleading.” According  to Defendants, the Complaint impermissibly “incorporates by reference every paragraph that precedes it which is the definition of a shotgun pleading.” (Mot. at 4.)

The Court begins its discussion by noting that the proper remedy for a shotgun pleading is the alternative relief of a more definite statement under Rule 12(e), and not a motion to dismiss pursuant to Rule 12(b)(6) as sought here. Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364, 366 (11th 1996). A defendant faced with a shotgun pleading “is not expected to frame a responsive pleading;” however, once a more definite statement is provided, “the defendant will be able to discern what the plaintiff is claiming [in order] to frame a responsive pleading.” Id. Significantly, in the instant action, Defendants filed an answer to each and every count of the Complaint. (DE 10.) Filing an answer suggests to this Court that it was not “virtually impossible” for Defendants “to know which allegations of fact are intended to support which claim(s) for relief.” Id.

Indeed, it is clear from the Complaint that Plaintiff is accusing Defendants of violating various intellectual property and trade practices relating to its “Your Baby Can®” products. In other words, both the Court and Defendants can ascertain from the Complaint how Plaintiff was allegedly wronged by Defendants, what legal theories Plaintiff is pursuing and how the factual assertions play into those legal theories. As such, this is not a shotgun pleading and Defendants' motion is denied.
 Ok, let's start with the "shotgun pleading" part.

Sure you could file a motion for more definite statement, as opposed to a 12(b)(6) motion, but why file anything at all?

How about calling opposing counsel and saying "you know that guy who files a complaint and includes by reference every single paragraph of the preceding count in each count, thus converting the complaint into an M.C. Escher-esque nightmare where each count folds up upon each other, endlessly, over and over and over again?  You're that guy."

That way the lawyer can amend, use up his free shot, and you can frame a response against a properly-pled complaint without making the other guy look bad.

Or you can file a 12(b)(6) motion and make everyone look bad.

Then you have the fact that the defendants answered anyway -- which as pointed out by Judge Marra moots the substantive purpose of the requested dismissal (assuming there ever was one).

Oy with this whole practice of law.

The World Is Ending Soon, Part MDCCCCLXXXXVIIII.

So apparently the other day a "Fountain Girl" fell into a mall fountain while texting, and over two million people thought this was an important event worthy of their valuable time, attention and fulsome mockery.

Enter her attorney James M. Polyak, who says he is conducting an investigation and considering a lawsuit:
"We are troubled by the fact that anyone at the Berkshire Mall responsible for releasing this video would find humor in an employee injured on the premises," Polyak said. "We intend to hold the appropriate persons responsible.

"No one from that security office came to her aid in a timely manner."
Holy hail.

Holy hail no!

James, in the name of all that is Holy and for the profession as a whole, let this go.

There may or may not be a viable claim here but regardless -- let this one go.

Please, we've been dinged around enough, no one wants to answer questions about this case at a cocktail party, when your spouse's friends are over,  or when someone sees your Bar card at Publix.

James, please spare us just this once.

Thursday, January 20, 2011

Do Any Tenured Florida Law Professors Think the Health Care Law is Constitutional?

I was interested to read this statement by over one hundred law professors from around the country regarding the constitutionality of the Affordable Care Act:
Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage pursuant to the Constitution’s Necessary and Proper Clause. In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress’s broad authority to enact laws beyond the strict confines of its other enumerated powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end” are lawful, the Court wrote. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.
In 2005, Justice Antonin Scalia explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Just last term, a majority of the Supreme Court, in an opinion joined by Chief Justice John Roberts, wrote that in “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

The ACA’s minimum coverage provision fits easily within this framework.
It goes on, in a mildly persuasive manner, from there.

Naturally I was curious to see which professors from our many Florida law schools signed on to this statement, as the list includes national luminaries such as Yale's Jack Balkin, UC Irvine's Erwin Chemerinsky, Chicago's Geoffrey Stone and many others.

So who signed on from our glorious Sunshine State, where nearly 8 million Floridians have pre-existing conditions (boy, we're a sick lot, huh)?

Only FSU's Franita Tolson, who is an Assistant Professor up in Tally (though she's on tenure track and we hope she gets there).

I'm happy to see Professor Tolson voice her opinion, but what the hail happened to the faculties of the University of Miami, Nova, FIU, Gainesville etc.?

Nobody at any of these esteemed institutions has an opinion on one of the more pressing legal issues of the day?

In unrelated news, it seems none other than Steely Dan has written a song to our very own Godwhacker!

Check it out above.

(No word yet on whether an ode to swlip is forthcoming.)

This Time Judge Carnes Cites An Old Opera!

Listen, anyone who reads this thing knows I'm all for historical references, pop cultural references, musical references, literary references, you name it.

And so is Judge Carnes!

But I think at this point Judge Carnes is just playing with us.

Get a load of this opening in an interesting opinion dealing with the Florida Bar's certification process:
This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.” 1 The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means.
Ok, that's a long way to go (all the way back to 1889 in fact) to make the point that you dilute the exclusivity of an honor when you expand the critieria for membership.

Didn't Groucho say something similar, only funnier?

Anyway, then the Judge goes on to affirm the district court's holding that an attorney, who was once certified in family law but was denied recertification based on negative confidential peer reviews, has no "entitlement" or constitutionally protected property interest in same, and no "right" to confront her peers.

Maybe the Grand Inquisitor reference has a deeper meaning?

Wednesday, January 19, 2011

New Trial Motion Filed in Luke Campbell Case!

Alternative basis for motion -- Campbell's attorney Richard "Elusive Butterfly" Brodsky moved around too much during trial (seriously):
By way of example, during examination of one witness, counsel for Defendant stood up and walked around the courtroom and toward the jury looking for some item, interrupting the testimony being presented, until he was directed to return to his seat by the Court. Similar inappropriate conduct was the norm, rather than the exception, during trial.
There's more -- Brodsky also allegedly disrupted "the flow": 
counsel for Defendant interrupted direct and cross examinations conducted by counsel for Plaintiffs for improper purposes and in an untimely and inappropriate manner. Said interruptions made it very difficult for counsel for Plaintiffs to maintain “a flow” during said direct and cross examinations which was a large concern with LUTHER CAMPBELL since LUTHER CAMPBELL was very evasive and easily distracted.
Needless to say, Brodsky doesn't agree, describing these arguments as "absurd and fatuous" (coincidentally, also the name of Brodsky's first band back in high school).

3d DCA Watch -- Same As It Ever Was (Apodictic).

Hi kids, it's a New Year, a fresh start, so let's swill the lukewarm coffee and see what turns up (besides week-old coffee grinds):

Parc Central v. Victoria Group:

Hmm, it's Judge Shepherd, I'm guessing he made one big resolution for 2011:
It is apodictic that the fundamental purpose of Chapter 713 of the Florida Statutes, commonly known as this state’s “Mechanics’ Lien Statute” or by its short title, the “Construction Lien Law,” is “to protect those who have provided labor and materials for the improvement of real property.”
 Alright, apparently not.

Question -- when is it not apodictic?

I mean, in the analysis of any legal question, even unsettled ones, you usually start with established first principles and work your way from there to application of those principles to the fact pattern at hand.  Thus, just like the Sun is shining somewhere on Earth at any given moment, there is always something that could be said to be apodictic in every single legal opinion.

It's the legal equivalent of saying "we're here" -- it's always true, though it offers little more than that.

Turner v. FIA Card:

I like how Judge Ramirez thinks:
The Florida Supreme Court in Wilson v. Salamon, 923 So. 2d 363, 368 (Fla. 2005), created a bright-line rule that any filing would prevent dismissal pursuant to this rule. Likewise, any filing in the 60-day period following the notice or motion for lack of prosecution would qualify as record activity and would keep the case from being dismissed. The rule likewise specifies a bright line for providing good cause—“at least five days before the hearing.” The rule does not read more or less five days, or around five days. By filing the showing of good cause on February 1, FIA Card Services did so four days before the hearing. If this is close enough,what about February 2, three days before? We believe that, just as the Florida Supreme Court sought to impose a bright line for keeping a case from being dismissed for lack of prosecution, we should impose a bright line for showing good cause, and if the rule states “5 days,” we can require no less.
 Now that, my friends, is apodictic.

Tuesday, January 18, 2011

"Him Blacker Than Me and You."

Who could that be referring to, you might wonder?

Who else -- my pal and highly skilled defense attorney David O. Markus.

Check David out on stage at Bayfront Park Sunday as he appears to be jamming with client Buju Banton:

The Jamaica Observer, doing exemplary work on the Buju trial/retrial as per usual, has the details:
Banton's knock out punch was when he called his attorney David Oscar Markus on stage and thanked him for his efforts in defending him against his accusers.

"Don't watch nothing say him white. Him blacker than me and you," Banton said before hugging his lawyer and exiting the stage after his non-stop 120-minute performance.
Two quick observations:

First, I really like David's smart yet sensible attire -- flexible enough to wear to Costco or appear on stage in front of ten thousand people.

Not a lot of lawyers could pull that off.

Second, this whole "him blacker" business raises an interesting question, given that David did in fact go to Harvard Law School....

Chief Justice: All Courthouses Should Look Exactly Like the 3d DCA!

In a bold rejection of the much-derided, lavish "Taj Mahal" courthouse built for the fancy-pants judges up at the 1st DCA, Chief Justice Canady has issued an edict from on high -- from now on, every courthouse should be just like our weathered, treasured, workmanlike JusticeBunker™:
"The construction of a courthouse is a long-term investment in a building where important public business is done. But that does not justify extravagant expenditures.
"Courthouses should be dignified, durable and functional. They should not be grandiose, monumental and luxurious.''
"Indeed," the Chief Justice continued, "they should be made not with miles of rare African Sapele wood, but rather with concrete -- lots and lots of concrete."

In terms of aesthetic design, Justice Canady was quite specific:  "Instead of a magnificent edifice intended to convey the sweeping power, grandeur, and authority of the Law, courthouses should appear more like a hardened shelter, often buried partly or fully underground, designed to protect the inhabitants from falling bombs or other attacks."

For example, "toilets and sinks should be bolted down to withstand sudden impact, and mechanical rooms should double as exercise centers in order to encourage both good health and fundamentally sound building maintenance.

I am aware of such a court, built literally upon a highway....."

Monday, January 17, 2011

Shortening Law Firm Names -- the Good, the Bad, the Ugly (aka GBU LLP)

I love this consultant-driven trend to shorten law firm names -- you now have venerable institutions with long distinguished histories shortened down to within an inch of their professional lives -- Akerman, Ruden, Gunster etc.

Indeed, if you add an exclamation point you'd have a nice title for a Broadway play -- Akerman! starring Nathan Lane, previews start March 1......and coming this fall Ruden! with Christine Ebersole, tickets available September 1st....

I see the latest to join the name-shortening trend is Fort Lauderdale's Brinkley, Morgan, Solomon, Tatum, Stanley, Lunny & Gordon LLP, now reduced simply to Brinkley Morgan.

Partner Roberta Stanley explains the thinking behind the change:
Stanley joined the Fort Lauderdale law firm 1996, back when at least a half-dozen partner names were stenciled on the door.

But over time as old partners leave and new ones join letterhead, business cards and logo designs have to be redone to reflect the changes. The cycle is never-ending and once again the firm has to reintroduce itself to the community.

So Stanley sought the advice of consultants and feedback from her co-workers. Simplifying, going back to basics was the consensus. The firm name now honors its founder: W. Michael Brinkley, who passed away this past November; and its managing partner, Philip Morgan, who joined the firm when it opened in 1975.

"It's what's in the best interest of everyone," said Stanley. "It's the future, to be recognized with a strong contemporary name." A streamlined website and logo accompanies the streamlined name.

The process became an opportunity for the firm to create a marketing campaign built around the rebranding, says Stanley. The new look and new name is more inviting and memorable, she says. That's important in attracting new talent as well as being transparent for clients.

Revamping the website allowed the firm to refresh attorney bios, ease navigation, and provide information.
Ok, I actually think this is an improvement, but why stop there?

What about "BM" -- it's short, catchy and people immediately know what you're talking about.

(On second thought, Brinkley Morgan is probably a safer choice).

Friday, January 14, 2011

SFL Friday -- Judge Huck Rules Against WSVN Over Nielson Methodology Change.

It's Friday and a three day weekend honoring that warmonger Martin Luther King, so perhaps it's fitting that Judge Huck has ruled today on a very interesting antitrust case involving whether Nielson properly captures minority and/or poor viewership (don't tell anyone, but I hear there's a lot of overlap).

Judge Huck in his Order granting partial summary judgment gives a nice summary of the claims brought by WSVN's parent company Sunbeam, which deal with a change in how viewership is measured:
This case arises out of controversy surrounding Nielsen’s October 2008 implementation of its Local People Meter methodology, a People Meter method replacing the Meter-Diary method in the Miami-Fort Lauderdale television market. Id. ¶ 3.  Sunbeam alleges that Nielsen implemented Local People Meters despite its knowledge that certain demographic groups—in particular, minorities—do not use the technology properly, leading to inaccurate ratings. Id. ¶ 57. Sunbeam alleges that this practice has drawn the criticism of customers, minority groups, advertisers, and congressional leaders, and contravenes an industry association’s recommendations. Id. Sunbeam further alleges that this flaw can be corrected by modifying survey methodology and statistics. Id. ¶ 82. The consequences of the change to the Local People Meter methodology have been profound: a dramatic reduction in WSVN’s ratings—in some cases by as much as fifty percent—resulting in lost advertising revenue of $1 million per month and a $100 million decrease in WSVN’s going-concern value. Id. ¶ 10.

Sunbeam contends that its injury is the result not merely of a defective ratings product, but of antitrust violations. Sunbeam alleges that Nielsen engaged in the following exclusionary and monopolistic conduct: (1) mandating contract provisions that prevent competitors from entering the market; (2) undertaking transactions and business strategies intended to neutralize actual or potential competitors; (3) imposing punitive pricing on customers who resist its practices; (4) utilizing defective ratings data to attract and retain new cable customers, thereby foreclosing a potential avenue of competitor entry; (5) imposing on its customers onerous contract provisions that, inter alia, leave them with no effective contractual recourse in the event of breach; and (6) charging noncompetitive prices for its rating services. Id. ¶ 13.
Hmm, this strikes me as a very difficult antitrust claim to establish..

Who are Nielson's competitors, for example?

The Judge finds all sorts of problems, including the aforesaid lack of competition as well as causation, and focuses on the zero-sum nature of TV viewership ratings:
For years, Sunbeam was pleased with the status quo of the Meter-Diary method, which even Sunbeam admits has flaws, but other stations, including cable stations, were not. Now some of those other stations may be satisfied, and Sunbeam is not. Were Nielsen to be compelled to revert to the Meter-Diary method or institute a new method entirely, it would likely face new complaints and possibly new antitrust actions from other stations, cable or broadcast, dissatisfied with their decreased allocation. This precarious position does not mean that Nielsen should be immune from some suit. The law does require, however, that Sunbeam present a triable issue of damages and, as to lost ad revenue and going-concern value, it cannot do so without undue speculation.
The Court did defer on the state court counts and permitted additional briefing, so all is not lost yet (actually, it probably is).

Boy, reading that thing was exhausting -- I'm cutting out for some well-deserved windsurfing but will try to check in tomorrow.

Have a great weekend!

Parsing the JFK Digital Archive.

Have any of you guys had a chance to go through the new JFK digital archive, fully text-searchable and available here?

It's actually pretty neat.

After the usual searches I'm sure everyone has already done (Inga Arvad, Hitler, Bo Derek) I came across an interesting conversation between legendary Miami News editor Bill Baggs and JFK, in which Bill is doing a hard-sell to the President on the doomed Interama Project, which was supposed to be built over where FIU North is today.

You can listen to the entire phone call here, and the transcript is here.

To be honest, I happen to agree with Jack -- it would have been intriguing but probably a huge waste of money, and given us very little in return for the sizable Fed investment.

Extra credit -- here is Kennedy speaking at the 163rd Street Shopping Center(!) -- no doubt right in front of the old amusement arcade.

South Florida Tea Partiers -- We're All Mischpocha Now.

After all that tsurris and farmisht and the fartust and with all the khazers and then the whole megilla, the feuding South Florida tea partiers are sitting down to a nice flanken, legally speaking of course.

Ok, even I'm not sure what any of that means, but they appear to have possibly settled their differences or at a minimum abandoned their lawsuit before Judge Marra.

And this to me shows great seykhl.

Thursday, January 13, 2011

Charlie Crist Gets A New Job!

The tan one is taking a job at Morgan & Morgan, that big time PI firm upstate:
Former Florida Gov. Charlie Crist has joined Morgan & Morgan. While serving in office, Crist was often referred to as “the People’s Governor.” His dedication and commitment to the people of Florida will remain the same as he works with the firm’s mass tort and class action department, fighting “for the people.” Crist said, “It's truly a privilege for me to have this opportunity to work all over our beautiful state. John Morgan has set up an incredible firm of very gifted people and it's truly an honor and a privilege to have this day come.” 
Morgan & Morgan was founded in 1988 with a single office and three attorneys; the firm has since grown into one of the largest in the southeast with 13 offices and over 170 lawyers, with a staff of more than 500 people. The growth and success of the firm can be attributed to a steadfast commitment to representing the people, not the powerful. It is this focus that appealed to Crist: “It’s really such a natural transition for me; to be with Morgan & Morgan and work with my dear friend John Morgan… he really is all about the people. That’s what I’ve always tried to do and aspire to do as a public servant. Now I’ll do it in the private sector.
I'm happy for him and think he'll do quite well at PI  (assuming Rick Scott will still allow people to sue) -- he's affable, easy going, quick on his feet and connects well with people.

Not everyone, of course, is thrilled.

For example, early Rubio-booster NRO thinks this is just, well, tacky and icky for any self-respecting elitist lawyer who should instead make big bucks representing mega corporations at [fill in the blank] BigFirm (perfectly ok by me btw):
All of which explains why some of my (admittedly, and archly, white-shoe) lawyer pals said yesterday when Morgan & Morgan announced its newest partner, “Yeah, that sounds about right.”
Hold on.

Just who are these "lawyer pals" -- Winthorpe's former friends at the club?

"And she stepped on the ball!"

And let me clue these condescending white-shoe ninnies in on something -- in Florida we actually have some prominent GOP conservative types who make a lot of money doing plaintiff's work -- Dean Colson for one comes to mind.

This means, you know, they actually have to interact with -- gross -- real human people, some of whom are poor, desperate and victimized, and try to help them with their problems and hope these lawyers get paid somewhere down the line and, even then, only if they are successful.

(This type of stuff never happens in white-shoe world).

If memory serves, as a matter of fact, former Senator and GOP chairman/original Hispanic poster boy Mel Martinez was a longtime partner at  -- yikes! -- Orlando PI firm Wooten Kimbrough.

What in the world would these "archly white-shoe lawyer pals" think of that?

(On second thought, don't answer that.)

Wednesday, January 12, 2011

Gabriel Jose Carrera Really Identifies With Sarah Palin. No, Really.

Bob Norman checks in with Fort Lauderdale immigration attorney and local Tea Party leader Gabriel Jose Carrera, who likes that Mama Grizzly Sarah Palin just a teensy teensy bit -- ok, a whole lot:
Carrera is a big fan of right-wing pundits and radio talkers, with his favorites being Glenn Beck, Michael Savage, and Rush Limbaugh, in that order. He's also a friend and believer in Joyce Kaufman. He was of course there for Kaufman's speech (grilling the dogs) during which she proposed bullets as a political remedy. And Carrera said he had a visceral reaction to those words. "I was like, 'Hell yeah!'" he told me. "Is Gabriel Carrera going to run down the street and start shooting any government official? No. I think that statement is more symbolic. It says we can change our government."

He said those words prior to the Giffords shooting and he says nothing has changed about the way he feels since.

Carrera is also, not surprisingly, an ardent supporter of Sarah Palin. "When you make fun of Sarah Palin you are making fun of me," he said. "When you are hitting her, you're hitting me." 

I don't want to "hit" Sarah Palin (I hope no one does).

But when Sarah hurts, Gabe feels her pain?

In fact, according to Bob, this guy has A LOT going on:
He has a tattoo of Confederate flag on his body (he won't say where) but says he didn't put it there in honor of the pro-slavery Confederacy but because he identifies himself as a rebel.
He likes John Lennon but says he is John's ideological opposite.

He is a first-generation Cuban immigrant who makes a living representing illegal immigrants in court yet is "stringently anti-immigration" (do his clients know this?).

He is fervently opposed to health care reform yet he and his wife can't afford any insurance and their kids are on the state health care insurance dole.

And from the video he seems like a perfectly nice man.....

To paraphrase Emerson, consistency is the hobgoblin of small minds.

Enough already, I want to interview this guy!

3d DCA Watch -- On the Road Again.


It's pretty exciting that the 3d DCA is taking their act on the road, in concert for a special one-night-only performance at UM's beautiful Storer Auditorium.

The 3d even provided a nice map with the building clearly identified with a big orange arrow.

The event will take place February 11th, which allows just enough time to get the building 3d DCA-ready in accordance with their detailed 11-page contract rider, which specifies the usual extensive site bunkerization, lukewarm coffee, careful placement of donated antique exercise equipment into various mechanical and storage rooms, heavily bolted down restroom facilities and of course showers, lots and lots of showers.

However, because moving trucks and roadies have already begun preparations for the big show (I understand Chief Judge Ramirez has specifically requested use of the Grateful Dead's massive quadrophonic Wall of Sound PA system), the 3d unfortunately has had absolutely no time to issue any new civil opinions this week.

Sorry about that, but priorities are priorities.

Above you can see some of the details on that epic Wall of Sound system -- say what you will, but these judges are true audiophiles!

Tuesday, January 11, 2011

A Law Clerk Remembers Chief Judge John Roll

Some beautiful reflections here by former clerk Matt Bowman:
It’s hard to describe the virtues of Chief Judge John Roll without making him sound too good to be true. I think that’s because he really was as good as all of us wish we could be, but know we so often aren’t. I would say he displayed “heroic” virtue — not necessarily heroic in the dramatic sense, but in the much more difficult sense of living excellence in every hour throughout each day with everyone he encountered.
The thing about this kind of excellence in a life is that it didn’t make the rest of us who knew Judge Roll feel inferior — on the contrary, he lifted up everyone he encountered by giving them attention, courtesy, and generosity of time no matter who they were. When I visited him as a student in the fledgling Ave Maria School of Law to apply to work as his law clerk, he rolled out the red carpet and treated me like I was the really important person there. When my wife and children came into the office occasionally or visited town in later years, he unfailingly made time to visit with us and remembered completely what was happening in our lives.
As I write this, I’m in my office, looking at the personal note he wrote to me after my return trip, expressing his excitement at my accepting his job offer and offering “best wishes to you, Jolene, and your new bambino!” That’s the kindness with which Judge Roll lived every relationship — with his staff, with attorneys and defendants in court, with probation officers and clerk’s-office employees, with prospective jurors, with members of Congress and court-of-appeals judges, with his beloved family, and with his Heavenly Father.
I think that for Chief Judge Roll, what unified these virtues — his intellectual attention to cases and the human dignity he honored in everyone he encountered — was, quite simply, humility.
Not a false kind of humility that is somber and self-loathing. Judge Roll’s humility was something much more authentic. He knew that the people he encountered really were important persons that Someone higher than himself had placed before him, with the intention that he would serve them with the talents that he had been given. So Judge Roll poured his mind into every brief and memo, his attention into every appointment and invitation, and his kindness into every staff member and their families.
Some people have described Judge Roll as a moderate, but I do not wish to introduce politics into my reflections on Judge Roll’s life — especially since Judge Roll’s well-known devotion to the rule of law included a meticulous commitment to the duty of a judge to be non-partisan, impartial, and fair (a fact that is being confirmed by the unanimous testimonies of his character that are coming out this week). But I do think that Judge Roll combined two virtues of public service that have been only very rarely achieved except by our most worthy statesmen. He was at one and the same time passionately devoted to his fundamental principles, and yet (or, rather, because of that) unswervingly committed to displaying the highest level of courtesy and respect to everyone he encountered no matter what side of society or the courtroom or the aisle they came from. In a sense, that is the opposite of moderation, as it is sometimes understood.
I remember Chief Judge Roll having in his chambers a book of the life of Saint Thomas More. But those chambers displayed to all of us a much more important testament to Saint Thomas More and the Lord he followed: Judge Roll’s life.
— Matt Bowman clerked for Judge Roll from August 2003 to August 2005. He now works as a legal counsel for the Alliance Defense Fund.

Chartwell Law Offices To Storm Miami's Beaches!

I've never heard of the The Chartwell Law Offices, which appear to be based in Pennsylvania, but their hearts and minds are very much in foggy England, with a craggy old cigar chomper who once saved the British Empire:
“Integrity”, “determination”, “intelligence” and “eloquence” are the words that usually come to mind when ones recalls the life of the man who once said of his home in Kent, England “ A day away from Chartwell is a day wasted”.

Indeed, Chartwell, with its noble brick walls, busy work-study, and garden studio, has come to embody the magnificent public life of Sir Winston Churchill.

The Chartwell Law Offices has chosen the image of this important 20th Century figure to symbolize our fundamental commitment of providing our clients with well-reasoned advice, zealous representation and cheerful goodwill, while engaging our colleagues in the legal community with honor, respect and integrity.
Hmm, this is like catnip for your humble blogger.

Now I see our Anglophile friends have opened up a Miami outpost, much like Churchill stormed the Gallipoli beaches in World War I, or battled disastrously for Greece in World War II -- ok ok, he made some good decisions too.

Here are the Miami lawyers heading up the new office:
Heading the new Miami office are Jerome Pivnik and Caroline Nitsche Carlson, who have been practicing general liability defense litigation together in Florida for over 20 years. "Jerry and Caroline are skillful litigators who have already demonstrated to our clients the highest levels of professionalism and service," noted Kenneth Goldberg, Chair of Chartwell's Liability Section in NYC.

The new Miami office is located at 9100 S. Dadeland Boulevard.

"We expect to announce further geographic and practice area expansions in the very near future," noted Cliff Goldstein, the firm's CEO.
 Congrats kids and remember:
Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.
 Oops -- wrong Churchill quote!

Let's try this:
All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope.
Ok, that's a better fit.

Good luck Caroline and Jerome!