Thursday, June 30, 2011

Spencer Aronfeld Responds to His Critics.....One By One.

 Spencer Aronfeld's latest book, Make It Your Own Law Firm, is available for sale on Amazon (you can even download it to your Kindle).

But like anything Amazon sells, that means Spence is subject to the slings and arrows of commenters like Lonnie from Lake County, IL who didn't like the book too much:
I bought this book after reading a negative review for another book and then reading the reviewers other reviews which recommended this book. It must be a plant. Seriously, this book gives no practical information on how to start a law firm. How it can be called a guide to managing and marketing a firm are beyond me.

His advice on marketing your firm is to read the E-Myth. Well, if I wanted to read the E-Myth as to how to market, I would have bought the E-Myth.

Another piece of advice is to buy the book "How to Start Your Own Law Practice." Isn't that what your book is supposed to do?

Want to know how to open your trust account? He suggests going to the bank and reading the local rules. What insight! I would have never guessed I needed a bank to open a trust account.

The book is little more than an autobiographical blog and not worth the price paid or reading if you are thinking of opening a firm. I wish there was a way to get my money back. Live and learn.
But Spence was right there with a response and a money-back guarantee:
Dear Lonnie I read your review today and I am sorry that you were not helped by my book. I certainly wrote it to provide guidance and inspiration to law students who are faced with the prospect of graduating and not having a job as a lawyer. I know you are an accomplished and experienced lawyer. This book was written for law students... I note that most of the books you have reviewed are related to cycling. I am a former cyclist and raced for many years.

Lonnie, In any event, there is a way you can have your money back. Send me proof of your actual purchase of the book on Kindle, because your review does not indicate that you are in fact a "verified purchaser" to me directly at: and I will personally write you a check back or donate the money to the charity of your choice. You decide.

I realized that when I wrote this book and put my time, effort, heart and soul into it, it would not please everyone. I am sorry you were disappointed in it and wish you the best in your legal career.
I actually like the way Spence handles this.  The reference to cycling is a way to build trust and develop a relationship, he praises Lonnie as a accomplished attorney, and then offers his money back.

(The insinuation that Lonnie never actually bought the book is a nice touch.)

Why can't AT&T act like this?

Wednesday, June 29, 2011

3d DCA Watch -- Opinions Spring From Brows Edition!

 The 3d will have one less bunker inhabitant as Judge Gersten enters the world of non-recycled gym equipment and finds that not every bathroom sink in every major commercial law firm is bolted to the wall.

(On the other hand, he's going to Bilzin so you just never know.)

In any event, say farewell and best wishes to the good Judge tomorrow -- event details here.

In other news, Judge Shepherd gets pretty pointed in a dissent from a withdrawn motion for rehearing en banc and tosses around big words and important concepts like stare decisis and brows out of which legal opinions spring fully formed.

Opinions from brows, a perfect image for a comic book -- isn't it about time the 3d starts issuing illustrated orders?

Read all about it here.

LoCascio v. LoCascio:

Judge Schwartz thinks the proceedings below have been "over-protracted."

For those keeping score, that is one grade worse than just plain "protracted."

Bismarck's Descendant Is At It Again!

When last we checked in on everyone's favorite SD FL pro se litigant, the busy descendant of Bismarck and Erica Jung was before Judge Zloch articulating a conspiracy involving British intelligence, David Rockefeller, and three children codenamed by the Nazis as "Squirt, Stinky, and Spike."

Now Mr. Delaney is back with a fresh complaint before Judge Martinez, and he has expanded his blockbuster allegations to include Martin Luther King, Jesse Jackson, Al Sharpton, President Obama, Pope John Paul, the entire Royal Family (not Pippa!) and of course the Pointer Sisters.

Read on and be amazed and/or stupefied, depending on just how much you trust Detective Kato of the Honolulu Police Department.......

Tuesday, June 28, 2011

New Rule -- No Dumb Discovery Objections!

Dumb Objections Order

Wouldn't it be great to live in a world where you didn't have to see boilerplate, utterly meaningless discovery objections, devoid of content and existing in some suspended state of phantom word jumble, where you know they're there and yet they are also not there?

Well Magistrate Judge Simonton wants to put a stop to such verbal detritus, and her general discovery order outlines a vision for a better, more substantive discovery world, where people answer interrogatories in good faith and no one interposes "vague" or "overbroad" objections unless there's a really good reason.

Take a gander and you may have a tear in your eye by the time you're finished:
The parties shall not make nonspecific, boilerplate objections....Objections that state that a discovery request is "vague, overly broad, or unduly burdensome" are, standing alone, meaningless, and will be found meritless by this Court.....

If there is an objection based upon an unduly broad scope, such as time frame or geographic location, discovery should be provided as to those matters within the scope which is not disputed.....

An objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why the request lacks relevance and why the information sought will not reasonably lead to admissible evidence.....

The parties shall not recite a formulaic objection followed by an answer to the request. It has become common practice for a Party to object on the basis of any of the above reasons, and then state that "notwithstanding the above," the Party will respond to the discovery request, subject to or without waiving such objection. Such an objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.
In other words, welcome to Discovery Shangri-La.

(Feels good, doesn't it?)

Monday, June 27, 2011

Your Monday Morning Glenn Garvin Sift.

Hi folks, do you know which summer camp to take your kids to this morning?

I don't know about you, but I can feel the summer exodus beginning, as the work load slows down, lawyers arrive later at work, judges cancel their hearings, and Joe Zumpano reflects on the value of humility.

Ahh, the rhythm of the seasons.

Comparing Glenn Garvin's review of Hot Coffee with the NYT's review is like, well, comparing the Miami Herald to the New York Times.

Hey, look at how nice the Washington Times is to Miami labor lawyer Patricia Ireland, who "infested" DC with NOW and their feminist claptrap (I'm paraphrasing):
Analysis: She gets paid to call Governor Rick Scott the devil while exploiting the proletariat. How liberal.
Wait a second -- I thought that's what I did.

Finally, congratulations to Justin Sayfie, now try to reign in the bald one please.


Saturday, June 25, 2011

Red Sector A

Certainly one of the better Holocaust survivor rock songs out there (then again, how large is the genre?).

Friday, June 24, 2011

Ancillary Rothstein Proceedings Churn On.


The latest Rothstein news comes from Judge Cooke, who denied TD Bank's motion to stay a civil suit pending before her on the grounds that TD's former Regional Vice President, Frank Spinosa, is about to be indicted and therefore TD can't mount an effective defense:
TD Bank seeks a stay of this civil action pending the outcome of criminal proceedings against Frank Spinosa, its former Regional Vice President. The Government has not indicted Mr. Spinosa. Shortly before the close of fact discovery in this case, TD Bank deposed Plaintiff’s corporate representative, and several of its partners and agents. Two of Plaintiff’s deponents testified about an alleged September 25, 2009 meeting and an alleged August 17, 2009 phone call where Mr. Spinosa made false representations to Plaintiff. The crux of TD Bank’s Motion is that these are new allegations, and that it cannot defend itself against them because Mr. Spinosa has invoked his Fifth Amendment privilege against self-incrimination. Thus, TD Bank seeks a stay of these civil proceedings.
Judge Cooke doesn't buy it:
In light of the allegations in Plaintiff’s Complaint, Plaintiff’s deponents’ testimony that Mr. Spinosa made misrepresentations in an August 17, 2009 phone call and in a September 25, 2009 meeting can hardly be characterized as “new allegations.” This case should not be stayed merely because TD Bank waited until just before close of fact discovery to take the deposition of Plaintiff’s corporate representative, agents, and partners. That Mr. Spinosa would invoke his Fifth Amendment privilege is also not new information. Mr. Spinosa invoked the privilege on June 10, 2010 and December 3, 2010, in two other cases, and he invoked the privilege in a February 17, 2011 deposition in this case.
Hmm, not to put too fine a point on it.

Should Lawyers Charge Taxpayers for an Airport Apple?

Ahh government work.

If you bill government entities for your time, inevitably someone wants to, you know, look at your expenses and see whether your billings are reasonable.

Why can't they just act like big corporations and let all this stuff slide?

Take St. Pete Beach, where taxpayers are apparently incensed that Miami lawyers from Bryant Miller Olive travel there and then expense ridiculous things -- like bottled water and an apple -- just to do the city's majestically boring and mind-numbingly dull legal work:
But Weiss says the city is allowing the law firm to bill tax payers for money it doesn't deserve. For example, the retainer agreement does not say attorneys should get their hourly rate for travel, but the firm charges $205 an hour in addition to the cost of air fare when attorney's travel from offices in Miami and Tallahassee.

Weiss says when lawyers travel from the Miami office to the area it is $615 dollars to get them here and then they charge three hours going back.

In addition, Weiss says the out of town attorneys charge for everything. He says some of the strange things include a lawyer charging $600 dollars to fly here, getting paid $205 an hour and then charging the city $2.10 for a bottle of water and $1.00 for an apple they buy at the airport. He says there is no concern for the taxpayer. 
Three dollars and ten cents just to sustain a Miami lawyer's insatiable need for water and a light snack?

What an outrage.

By that I mean, what an outrage that an attorney from our city has to go to St. Pete Beach for business!

Whatever happened to fancy dinners in Vegas, New York, LA -- this poor schmuck has to travel to some podunk backwater and suffer the indignity of having her one dollar airport apple purchase dissected by an irate citizen.

Like I said, government work.....

Thursday, June 23, 2011

Dwyane Wade Wins Something!

Well D Wade didn't win a title this year, but he (through his school entity) did beat the plaintiff on a summary judgment motion that was pending before Judge Marra.
The basic premise of Lichfield’s complaint is that it signed an agreement with Next Generation’s predecessor, fulfilled its portion of the contract, and deserves compensation from Next Generation pursuant to the agreement. The crux of the litigation is whether the consulting agreement contains a scrivener’s error or whether the parties intended the agreement to apply to a not-yet-formed entity called Dwyane Wade Schools of Florida, LLC. The affidavits conflict on this point as Bruce Fein’s affidavit, which supports Lichfield’s Motion for Summary Judgment, states that the misnaming of the party in the consulting agreement was a simple scrivener’s error. [Fein Aff. ¶¶ 5, 6]. In Mark Rodberg’s affidavit submitted by Next Generation in opposition to the motion, Mr. Rodberg attests that the agreement was intended to be between Lichfield and a corporate entity to be formed, and that it was not a contract with Defendant. therefore, Next Generation owes Lichfield nothing pursuant to the contract [Rodberg Aff. ¶¶ 9, 10]. Because the affidavits conflict on this critical issue, summary judgment cannot be granted.
If the above recitation of facts is accurate, this seems like a really dumb issue to move for summary judgment on, no?

Or am I missing something?

BREAKING -- Buju Sentenced to 10 Years.

Judge Moody threw out the gun charge but otherwise sentenced Buju to 10 years in prison:
Dozens of letters to U.S. District Judge James S. Moody are included in the court file for the 37-year-old recording artist, whose given name is Mark Myrie. Several of his 15 children wrote, as did a former Jamaican government official, an NBA player, other reggae artists and actor Danny Glover, who called Banton a "role model, philanthropist and spiritual leader in the community."

"Your honor, Mark Myrie is not a drug dealer," Glover wrote. "Society would not benefit from his incarceration."

Banton's attorney, David Markus, says federal sentencing guidelines call for a prison term of at least 15 years. In a court filing, Markus told Moody that is "way more than necessary" in Banton's case.

The judge did throw out a gun charge, lowering Banton's sentence from 15 years to 10. He was also ordered to serve five years of probation following his release from prison.

Markus contended that Banton deserved a lower sentence because of his limited participation in the drug buy, his charitable work in Jamaica and his otherwise clean record.

Banton's oldest son, also named Mark Myrie, wrote that his father "puts hard work, sweat and tears into his music and that is what (he) 'puts on the table,' it has never been drugs....The situation is just an example of our mere imperfections as people, being at the wrong place at the wrong time."
What's the next step, defense lawyers?

(Besides prayer.)

Wednesday, June 22, 2011

3d DCA Watch -- A Bright Shining Lie?

As we get ready for the President's Afghanistan speech tonight, let's remember history instructs us that all governments -- including the United States -- routinely distort and in fact sometimes lie for political expediency when it comes to war and peace.

In that we are most decidedly not exceptional.

Speaking of lies, get a load of this blistering Judge Rothenberg dissent in a sexual assault case that occurred in Mexico but involved Florida defendants and which was dismissed on Kinney grounds and affirmed by the majority.

In addressing the jurisdictional affidavit of the defendants which was accepted by the trial court Judge Rothenberg notes a slight problem with credibility:
The Florida Defendants and Ms. Rodriguez now admit that each and every one of these statements was false.

The record in this case reflects that the Florida Defendants and Ms. Rodriguez have a long history of deceiving or attempting to deceive the courts of this State by submitting affidavits with similar false statements, but which they now admit were false. See Weiss v. Palace Resorts, Inc., No. 07-03385 CA 11; Discipio v. Operadora Palace Resorts, S. de R.L. de C.V., No. 06-26242 CA 10; Shapiro v. Palace Resorts, Inc., No. 06-23603 CA 8; Kobryn v. Palace Resorts, Inc., No. 06-06555.
Hmm, this could be a problem.

She concludes:
The trial court erred, and its order granting the Florida Defendants’ motion to dismiss the lawsuit and send Cortez to Mexico to litigate her claims against the Florida Defendants, must be reversed because it is based on conclusions, not evidence, and the evidence does not support the conclusions made by the trial court. The trial court’s adequacy determination cannot be upheld where the trial court relied on an affidavit submitted by one defense witness who admitted that material representations in the affidavit were false, and another defense witness who subsequently modified the statements in his affidavit when he was deposed, and where material adequacy factors mitigating against Quintana Roo as an adequate forum were admittedly not considered by the trial court when making its determination.
Oh well, crap happens!

JP Morgan Chase v. Hernandez:

Judge Adrien gets one badly wrong --
Finding no basis whatsoever for the entry of the April 2010 Order, we reverse. We further grant Washington Mutual’s motion for appellate attorneys’ fees and sanctions against the Debtors and their counsel for abusing the legal process, resulting in a drain of judicial resources and unnecessary litigation expenses.
The Court's history of the proceedings in this case is a must-read, describing certain events as "mind-boggling" and actions taken as "nonsensical" and "essentially fraudulent."

For good measure they refer the debtor's attorney to the Florida Bar due to "potentially unethical conduct."

Diaz Reus v. Wingate:

How's this for absurd procedural gamesmanship:
Wingate filed a complaint against Redfield in the circuit court in and for Miami Dade County for breach of contract, specific performance and tortious interference with a contract entered into between the parties for the purchase and sale of real property in Pinecrest, Florida. The day after filing the complaint, Wingate filed an identical complaint in the same circuit receiving a new case number and a new judge. At the same time, Wingate filed a voluntary dismissal with prejudice of the first filed complaint. Redfield was served with the second filed complaint. Redfield removed the case to federal court. Once in federal court, Redfield moved for summary judgment on the ground that the voluntary dismissal with prejudice taken in state court was an adjudication on the merits and, therefore, the complaint was barred by the doctrine of res judicata. Realizing the problem, Wingate filed a motion in state court to vacate the voluntary dismissal with prejudice and to convert it to a dismissal without prejudice. This motion to vacate was filed ex-parte under Wingate’s questionable theory that, as Redfield had not been served with the first filed complaint, Redfield was not required to have notice of this hearing, even though it was a party to the second filed identical complaint.
Come on!

What ever happened to just adjudicating a complaint on the merits?

Judge Shepherd in a special concurrence both uses the word "legerdemain" and also makes a horsey reference involving somebody mounting a wild steed, or something:
The dissent’s emphasis on the plaintiff’s motive for seeking to expunge the language “with prejudice” from its dismissal filing in this case is misplaced, as even it concedes the right of a litigant to “switch horses” to obtain a different “mount” midstream “is a strategy [] not prohibited by the rules or the case law.”
Personally, I always like a different "mount" midstream.

Judge Ramirez' dissent, however, basically just calls bullcrap on the whole enterprise, midstream horse mounting or not:
Our decision then hinges on whether what happened here was a tactical mistake or a secretarial error. I believe it was a tactical mistake. The whole scheme of filing two suits and dismissing the one falling before the less desirable judge was a quintessential tactical scheme. Admittedly, the scheme was botched, as the trial court found, through excusable neglect. But it was the direct result of the attorney’s stratagem of filing two suits to engage in what was nothing other than judge-shopping.
Judge Ramirez concludes:
I would reverse the trial court because I believe the dismissal with prejudice was nothing more than a botched tactical ploy.
So it appears what we have here is a "botched tactical ploy" that occurred while attempting "a different 'mount' midstream."

To which I can only say -- been there, done that.

Tuesday, June 21, 2011

Federal JNC Applicant List.

Who is Brian Gilchrist and why is on all three applicant lists to be a federal judge for the SD FL, MD FL, and ND FL?

And how come he didn't apply to be U.S. Marshall?

That and more, revealed below......


Scott Rothstein "Dirty Dozen" To Be Charged?

Looks as if at least a dozen alleged co-conspirators of Scott Rothstein are due to be charged in the next few months:
Federal prosecutors say multiple new defendants will be swept up in the wide-ranging investigation into Scott Rothstein's Ponzi scheme.
Their timeline for bringing the new suspects before a federal judge: Six months.
Lawyers close to the Rothstein case have speculated that a dozen to two dozen people could ultimately face criminal charges. 
Two dozen?

That's a lot of lawyers people.

Wonder who's on or off the list?

Your Tuesday Morning Bullcrap Club.

Let's see, so if the President's Afghanistan plan works perfectly (always the case there) and the President does not cave in or compromise (he never does!), then we can expect to target the "hand over" of Afghanistan to Afghan forces sometime in 2014, with US troops expected to remain there well in 2015 or beyond.

This turns out to be a great campaign re-election slogan:


Basically I blame the President to forcing me to agree with Glenn Garvin.

Even worse, Glenn Garvin now appears to agree with Glenn Greenwald.

Worser yet, Obama loyalists now find themselves agreeing with this esteemed crew:
“The United States must see this effort in Libya through to its conclusion,” reads the letter, signed by conservatives including Liz Cheney, William Kristol, Karl Rove, Paul Wolfowitz and R. James Woolsey Jr. 
Obama partisans, Liz Cheney and Paul Wolfowitz(!) -- bet you didn't see that coming way back in 2008.

In other news, Justice Scalia is a mean one, Mr. Grinch.

(But this we already knew.)

Monday, June 20, 2011

Doesn't Everyone Want "Harvard On Your Side"?

I spent nearly three hours perusing the latest Super Lawyers 2011 Florida edition, and the advertisement for Chase Lawyers℠ and Barry Oliver Chase on page 20 naturally caught my eye:
Wow -- the entire institution?


Barry's website is also and starts off with a bang:
Don't YOU deserve a Harvard Lawyer?

In the entertainment industry, protecting your rights can be tricky. But it is essential for success. From music industry agreements to TV shows, film rights and celebrity endorsements, entertainment attorney Barry Oliver Chase helps individual clients and companies capitalize on their talents, products and services.

With years of hands-on experience after earning Honors degrees from both Yale and Harvard, Mr. Chase has the knowledge and skill needed to ensure that your rights as an author, artist or entertainment company are fully protected. Whether engaging in contract negotiations, demanding royalties from a record label or publishing company, or representing clients in court, Mr. Chase provides honest and professsional representation designed to produce results.
Wait a minute, Barry went to Yale too?

So now Yale is chopped liver?

How about, or was that already taken℠?


It occurs to me this might work with other schools as well:


Don't YOU deserve a STETSON lawyer?

Well, you get the idea.....

"Facts Shall Not Be Rambling Narratives" -- Great, Now You Tell Me.

Rambling Narratives Order

Who among us has not, from time to time, strung a random collection of facts and citations together and just filed the sucker?

Well apparently this is now frowned upon, at least in certain epic toe-tapping broken yacht cases:
2.  Facts shall not be rambling narratives, but shall refer specifically to pages/lines of testimony and/or pages or paragraphs or lines of admitted exhibits.
This is a fantastic practice tip -- I only wish someone had clued me into this a few decades ago.

For example, here is a sampling of my last findings of fact that I submitted recently in a federal case:
By the waters of Leman I sat down and wept ...
Sweet Thames, run softly till I end my song,
Sweet Thames, run softly, for I speak not loud or long.
But at my back in a cold blast I hear
The rattle of the bones, and chuckle spread from ear to ear.
A rat crept softly through the vegetation 
Dragging its slimy belly on the bank
While I was fishing in the dull canal
On a winter evening round behind the gashouse
Musing upon the king my brother's wreck
And on the king my father's death before him. 192
White bodies naked on the low damp ground
And bones cast in a little low dry garret,
Rattled by the rat's foot only, year to year. 
But at my back from time to time I hear 196
The sound of horns and motors, which shall bring 197
Sweeney to Mrs. Porter in the spring.
O the moon shone bright on Mrs. Porter 199
And on her daughter
They wash their feet in soda water
(These findings were actually upheld on appeal.)
Don't even ask me about my conclusions of law!

Saturday, June 18, 2011

David J. Stern and the "Too Much Mail" Defense?

If you get a bill in the mail, let's say for your mortgage payment, and you just throw it on top of a giant pile of junk mail accumulating on your kitchen table and never do anything else with it, do you think your bank will care?

Does that mean you never have to pay it?

Now let's say you're David J. Stern and you get an Order from the 5th DCA:
Stern's attorney, Jeff Tew, said SunTrust fired Stern in mid-December, before the Feb. 16 order was issued. Also, with 10,000 pieces of mail coming into the foundering law firm every day, Tew said it's possible the notice wasn't seen.
Ok, but if you didn't get an order approving your withdrawal from the case, aren't you on the hook anyways?

And about that "too much mail" defense......seriously, in what context is that ever a legitimate defense?

Friday, June 17, 2011

Pop Quiz, Hotshot!

Has former Judge Izzy Reyes joined a law firm, or Seal Team Six:
Lean, agile, and on the ground in Latin America, Asia, the Middle East, Europe and the U.S....
Boots on the ground -- is this a business plan or our nation's foreign policy doctrine?

And what about predator drones?

These guys can do it all -- file a writ in Malaysia or hunt down Bin Laden, it's all in a day's work

Check out the Judge's resume, going all the way back to his laudable work as a homicide detective.
Ok, maybe these guys really are Seal Team Six?

Thursday, June 16, 2011

Someone Still Wants to Photograph Tom Cruise?

Norm Kent believes there is a constitutional right to photograph the All the Right Moves star from a public place on the streets of Fort Lauderdale.

Doesn't he read Carlos' blog?

That is so last century:
"You have no right to arrest a citizen for taking a photograph from a public place where he has a legal right to be," said Norm Kent, an attorney and the editor and publisher of South Florida Gay News.

Kent claimed three of his photojournalists have been threatened with arrest for taking pictures from a public sidewalk and a public garage near the movie set.

"We have three -- three separate individuals on three different occasions," Kent said.

The city of Fort Lauderdale refused to comment, citing pending litigation. City representatives said they did not put up the signs and thought they had been taken down.

"They should have known better than to allow the movie studio to post signs that they're enforcing, and I am asking the judge to enter a declaratory judgment saying the city has acted illegally," Kent said.
Good thing civil justice is swift and sure in Broward County and I know Norm will get a hearing soon.

(What, the movie wraps July 24th?)

Hope you enjoyed your stay, Mr. Cruise!

Casey Anthony Judge Displays Powerful Listening Skills.

I'm not following the Casey Anthony trial and know absolutely nothing about the Orange County judge presiding over the case, the Honorable Belvin Perry Jr., though naturally lawyers who appear before him and are quoted by name don't have anything but nice things to say about him.

And it's a very high-profile case and tensions are running very high etc.

But still I'm just flabbergasted at this judge's inability to understand what defense counsel is complaining about here.

Defense lawyers feel free to weigh in, but the essential idea of burden of proof doesn't strike me as a difficult concept to grasp, whether you agree with defense counsel's request for a curative instruction or not.

Wednesday, June 15, 2011

3d DCA Watch -- New Trial Granted! (Hmm, Did I Forget Something?)

 Well la dee dah!

I guess you Fancy Pants appellate judges can issue content-free PCAs all day and night, but God forbid my new trial order lacks the specificity Your Highness demands:
Elena Casines appeals from the trial court’s May 12, 2010, “Order Granting Defendant’s Motion for New Trial.” Because the order does not contain specific grounds, we relinquish jurisdiction to the trial court for sixty days for entry of an order specifying the grounds upon which the trial court relied to grant a new trial.
Question -- could you be more specific?

Seriously, what specificity is the Court looking for, and can some guidance be provided for future cases in which this situation may arise?

You know, precedent and all that.

Miami Automotive Retail v. Baldwin:

Specific oral misrepresentations usually make tough class certification cases.

Ok, and I agree.

But Phil Parrish needs to establish a record that he can fund the litigation?

Now that's just plain odd.

You May Want to Avoid Swimming at North Beach.

The good ole' Army Corps of Engineers, recently lambasted in Harry Shearer's excellent documentary "The Big Uneasy," comes under fire by Judge Huck for negligently depositing large rocks along the North Shore beaches, causing at least one very severe injury:
The Court concludes that the government breached its duty to Downs because the Corps allowed rocks, up to a basketball in size, to be placed in the beach fill on Phase 2 and knowingly allowed at least some of these rocks to become exposed in the surf zone between 72nd and 73rd Streets. The Court also finds that the government’s breach of its duty was a proximate cause of the injuries that Downs sustained when he dove diagonally into the ocean and hit his head on a rock. The injuries sustained by Downs were a foreseeable result of the government’s negligence.  See Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th DCA 1981) (“In order for injuries to be a foreseeable consequence of a negligent act, it is not necessary that the initial tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur. [A]ll that is necessary . . . is that the tortfeasor be able to foresee that some injury will likely result in some manner as a consequence of his negligent acts.”) The Court also concludes, as discussed above, that Downs’, Miami-Dade County’s, the State of Florida’s, and the City of Miami Beach’s negligence each contributed to Downs accident and resulting injuries.
Knowingly allowing basketball-sized rocks to be placed along the surf line on Miami Beach?

No doubt the Greater Miami Convention & Visitors Bureau will somehow turn this into a positive -- come visit Miami Beach get a free kettle bell/beach rock workout!

Tuesday, June 14, 2011

Marc Brumer Really Likes Acting!

Marc Brumer, late of the Suge Knight/Kanye lawsuit (our previous coverage here), thinks you should hire actors to read depositions to jurors:
"If a doctor isn't available, which happens all the time, you can do a casting call and find some guy who was on "One Life to Live," some gray-haired guy," Brumer says. "You give him the deposition ahead of time so he's prepared, and he'll come in and you're going to get what you need."

Let's say some crotchety, decrepit old country doctor accused of malpractice is not available to testify, I would bring in classic OLTL character actress Andrea Evans, who memorably played Llanview's red-haired wild child Tina Lord Roberts, to read his testimony:

Who could possibly ever rule against poor Tina?

(Hey, I spent a lot of time in college watching daytime soaps.)

Of course the Florida Bar, still debating the possible benefits of email service(!), has not yet caught up with this new phenomenon:
Hiring actors to portray witnesses hasn't become widespread enough to draw the attention of the Florida Bar, so there aren't any rules that govern it.

Brumer, for example, isn't required to disclose that his deposition reader is a professional actor. In a legal sense, he says paying an actor $200 an hour to prepare and read a deposition is no different from asking a legal secretary or a paralegal to stand in for a witness. 
Well I guess one difference would be the deposition-reader is in fact a professional actor and the jury does not know this.

Other than that, yeah I suppose there's no difference?

This Complaint Makes Perfect Sense to Me!

Bismark/Jung Complaint

Maybe it was the two cafecitos this morning, or perhaps the three Dewar's last night, but this pro se complaint pending before Judge Zloch seems reasonable and actually explains quite a lot.

Take note, young writers -- here's the gripping first paragraph, which should definitely be made into a graphic novel or big-screen blockbuster:
The Petitioner is being subjected to an ongoing conspiracy of discrimination due to his mother being a descendant of King Bismarck of Germany.  The marriage between the Petitioner's German mother of Erica Jung and American father of Richard Delaney was arranged by President Dwight Eisenhower when the Petitioner's father was stationed in Germany in the American military.  Upon returning to America, Director Allan Dulles of the CIA arranged for Richard Delaney to become employed by Chevron Oil Company owned by the Rockefellers in a game of the Mother, the Child, and the Dragon in the Book of Revelations, but only because he knew that Nelson Rockefeller controlled British intelligence at the time.  This led to David Rockefeller instructing Richard Delaney to name his three German children Michael John Delaney, Larry Paul Delaney, and Valerie Jean Delaney.  David Rockefeller further instructed to give all three German children the Nazi SS nicknames of Squirt, Stinky and Spike, all beginning with an S.
If you keep reading, the causation argument becomes quite interesting.

Any guesses on how it will do under the new Iqbal/Twombly pleading standard?

Monday, June 13, 2011

11th Circuit Rules Against Terry Jacks!

Poor Terry Jacks, the dude always seems so unhappy, whining like a navel-gazing loser over trusted friends and birds singing in the sky and starfish on the beach and Papa and pretty girls and children and Michelle dying.

Now I can finally understand why:
We affirm the grant of summary judgment in Wells Fargo’s favor as to all claims except those based on actions that Wells Fargo may take after the Jacks’ bankruptcy case is dismissed or discharged. We determine to the extent the Jacks’ claims are based on events that may take place later, they are not ripe, and we dismiss them.
So now we can blame Wells Fargo for that train wreck of a song.

Brian Moskowitz May Get Clients Because He is a "Best Catch"!

I don't know about you, but if I need to hire a lawyer in Boca it sure doesn't hurt that he's been named a "best catch" by some local promotional magazine.

I see I'm not alone:
Moskowitz believes that the increase in clients from Boca Raton stems from many factors including his firm’s focus on doing what’s right and always keeping the client’s best interests at heart.

Moskowitz also commented that “the fact that I am a single parent and was recently named one of 'The Best Catches' in South Florida by Boca Life Magazine hasn’t hurt.”
Come on, let's be honest -- doing what's right, keeping client's best interests at heart yada yada yada, we know what's really driving these Boca folks crazy......

Plus he claims he's "passionate" -- what more do you need?

Sunday, June 12, 2011

Hey, Something Good Happened!

I've received a fair share of emails noting a perceived increase in cynicism or even pessimism at the blog recently.

All I can say is this is not a new condition and I've pretty much been this way since birth:

"Ma, only one boob at a time?  But why???"

And I still feel that way.

(Indeed, this may explain a lot.)

Regardless, it's nice to post something positive about the South Florida legal community every once in a while:
More than 500 well-heeled guests showed up at the elegant ballroom of the Breakers Hotel in Palm Beach to witness history on Saturday.

John Howe, 38, became the first African-American president of the Palm Beach County Bar Association (PBCBA).

The group, comprising some 3,000 lawyers in a county deemed one of the wealthiest in the state, at one point did not accept blacks as members.

Howe, who is of Jamaican descent but was born in West Palm Beach, said he is following in the footsteps of a handful of blacks who fought to integrate the association in 1963.
This is a huge milestone and even though it should have happened years ago, John's induction as President is great news.

Congratulations John!

Friday, June 10, 2011

Circuit Court Interviews Set for June 16th!

 Interview List

Wow, the same date currently scheduled for Mr. Gleason's show cause hearing before Judge Olson.

Is this some sort of cosmic synchronicity?

Hmm, this is also the same date Marshal Henri Philippe Pétain became the Premier of Vichy France.

(I'm gonna leave it right there.)

Good luck, candidates!

Is Local Bankruptcy Bar Too "Understandably Tepid" To Represent Kevin Gleason?

Tepid Bankruptcy Bar

Kevin Gleason has a show cause hearing to worry about in front of Bankruptcy Judge Olson just because of a bunch of words he put on digital paper (and then filed with the Court).

So naturally he reached out to hire an attorney to represent him.

But this was not easy, according to his motion to continue:
Immediately upon receipt of the En Banc Order, I began a search for counsel.

3. The response from attorneys practicing before this Court was understandably tepid.

4. It was suggested that I seek counsel outside of this District, and I immediately reached out to my first choice, the Honorable Francis G. Conrad.

5. Former Judge Conrad is currently of counsel to the firm of Jager Smith, practicing from offices in Manhattan and Boston.
A Big City lawyer, I see.

But Judge Conrad has hip surgery plus rehab coming up, so will Judge Olson reschedule the hearing?

Stay tuned......

Thursday, June 9, 2011

Bret Lusskin Just Wanted to Win a Free Rolex at Tootsies!

Tootsies Justice Brandeis

"Ticket Cricket" attorney Bret Lusskin just went to Tootsie's one night in hopes of winning a free Rolex.

I mean, who hasn't?

But something went terribly awry:
17. MR. LUSSKIN paid a cover charge that evening in the amount of approximately $20 dollars to be seated in the upstairs section (i.e. “VIP” seating) of the nightclub; other patrons paid a lesser cover charge to be on the ground floor (i.e. general seating) at “Tootsie’s Cabaret.”

18. During that evening several announcements were made by Defendant with respect to a Rolex “giveaway.”

19. Prior to these announcements, for several weeks, multiple advertisements were posted in said nightclub and on the internet, including Defendant’s “Facebook” webpage; the advertisements promoted the aforesaid contest/giveaway.

Although Mr. Lusskin did exactly as he was told, he sadly did not leave Tootsie's that night with an expensive jewel on his arm (I think).

Yet things got even freakier for Mr. Lusskin as his path to that coveted strip club Rolex took a grave, unexpected turn:
28. The Rolex “giveaway” was a marketing ruse by Defendant in order to obtain MR. LUSSKIN’S and the other participants’ cell phone numbers in order that Defendant or its agents could send commercial text messages to Plaintiff and the other participants over and over again.
29. Since entering the contest, Plaintiff has received more than 200 unwanted commercial text messages by Defendant starting on or about December 5, 2009; this practice is commonly referred to as “mobile spamming.” Some examples of the text messages sent by Defendant are as referenced below:

[On September 17, 2010…]

Tootsie’s Cabaret Miami – 125$ Bottle specials on Belvedere $ Hennessey all night and XXX Feature Entertainer Schevelle tonight!! Msg&Data rates may apply

[On September 20, 2010…]

Tootsie’s Cabaret Miami – In the Biz 3$ drinks 100$ bottles. 5.95$ Prime Rib Dinner!! Monday Night Football!! All tonight @ Tootsies Msg&Data rates may apply

[On September 23, 2010…]

Tootsie’s Cabaret Miami – 125$ Bottle Specials on GOOSE & REMY VSOP and Special performance by XXX Feature Lisa Ann of Nailin Paylin Msg&Data rates may apply

[On November 9, 2010…]

Tootsie’s Cabaret Miami – In the biz 3$ drinks NO cover till 8pm 100$ bottles of GOOSE all night! HEAT game playing in KNOCKERS!! Msg&Data rates may apply

[On November 17, 2010…]

Tootsie’s Cabaret Miami – Stop in for happy hour half price drinks and no cover until 8pm This weeks XXX feature entertainer Ginger Lee Msg&Data rates may apply
This is shocking!

I mean, these deals are shocking!

Seriously, now I completely understand why Justice Brandeis is invoked in the first paragraph of the complaint.

And can you imagine if Bret had won the Rolex?

Picture this conversation at a local Bar event:
Judge Seitz:  "Why Mr. Lusskin, that is a lovely watch you are wearing!"

BLK:  "Thanks, Judge.  I won it in a promotion at Tootsie's the other night.  You wanna hear how I won the car I'm driving?"

Judge Seitz:  "I see my law clerk is calling me over, have a nice day."

Waiting for the Man.

I've been waiting in line in front of 73 West Flagler since 4 p.m. yesterday, $26 in my hand -- there is NO WAY I am missing out on this morning's free postage stamp cancellation:
This Friday, the United States Postal Service will designate the Dade County Courthouse as a postal station for the day. After a brief ceremony, with Chief Judge Brown and Miami's Postmaster attending, stamped envelopes brought to the post office's desk in the courthouse lobby will receive an official and unique cancellation bearing the centennial logo (similar to the one below). Each cancelled envelope will become a collector's item, especially those depicting Romero Britto's centennial artwork. If you do not have the below envelope, there will be some available - gratis. The number is limited. This event is for one day only.

Do you know how rare his stuff is?

This is just like that time in college I waited all night for Rush tickets!

(What?  I have been advised that the free Britto postage stamp cancellation logos will be made available on Friday, not today.)

Oh well, this really is exactly like the time I waited all night for Rush tickets.....

I guess I'll see you all tomorrow?

Wednesday, June 8, 2011

3d DCA Watch -- No More Filings For You!

Hi kids, the bunker is entering summer hibernation mode just like the rest of us but before it does let's take a peek at what the swillers have been swilling this week:

Jenkins v. Motorola:

Poor pro se litigant Oza B. Jenkins.

All she wants to do is file lots and lots of paper against Motorola in court.

I'm sure it's good paper, quality paper, perhaps even "white-bond" paper (youngsters, ask your senior partners -- when they show up -- about this).

But NOOOOOO, says Judge Shepherd:
In Jenkins v. Motorola, Inc., 36 Fla. L. Weekly D832 (Fla. 3d DCA Apr. 20, 2011), this court ordered Oza B. Jenkins to show cause why she should not be precluded from filing further pro se appeals in this court, arising out of lower tribunal number 04-1420. Ms. Jenkins timely filed her response, and Motorola, Inc. its reply.

Upon consideration of Ms. Jenkins’ response, the reply of Motorola, Inc., and this court’s independent review of the many filings made by Ms. Jenkins in this court, Ms. Jenkins hereby is barred from filing further pro se proceedings in this court arising out of lower tribunal number 04-1420. See Sibley v. Sibley, 885 So. 2d 980, 985 (Fla. 3d DCA 2004). We direct the clerk of this court to reject any further filings on Ms. Jenkins’ behalf, arising out of lower tribunal number 04-1420, unless signed by a member of the Florida Bar.
Well that should solve everything, don't you agree?

Amazing -- Motion for Reconsideration Actually Granted!

Reconsideration Granted

Wonders of wonders, miracles of miracles....

If you strictly abide by the standard for motions for reconsideration, they are pretty darn hard to prevail upon.

They also require more or less a confession of error of some kind by the court, again something federal judges don't tend to do all too often.

That's why this order from Judge Seitz granting in part a motion for reconsideration is fairly surprising, and indeed refreshing in some respects.

It's also interesting that Judge Seitz appears to disagree with Judge Cooke's reasoning in Grovenor House as to privity in the warranty context, though she mostly relies on the reconsideration standard for refusing to follow this precedent.

Tuesday, June 7, 2011

Ivan Kopas Is Tired.

We interrupt your Heat-induced, post-game, too-tired-for-work stupor to advise you that you are not alone:  Conrad Scherer attorney Ivan Kopas feels your semi-somnolent pain:
"Getting up the next morning, it's rough," said attorney Ivan Kopas, 40, of Pompano Beach, while attending the Heat's home game last Thursday with his teenage son Trevor. "Luckily, I don't have court in the morning."

Some fans are relying on caffeine and energy drinks to stay alert after repeated late nights.
Actually, I did have court the other day and someone was kind enough to capture a photo of me presenting my argument at motion calendar.

Luckily we were in chambers so I was able to sit down:

(Did I mention my motion was granted?)

Judge Huck and the "Love Shack" (End of Headline).

As a famous unicyclist once said,
There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.
Here are the things we know:

1.  Judge Huck went up to the 11th Circuit to sit by designation.

2.  Georgia is in fact the home of the B-52s.

3.  Judge Huck sat on a panel that found itself in a Love Shack.

That's all I'm saying.....

(God it's slow around here -- see what I have to work with?)

Monday, June 6, 2011

"If You're Not Funny in Person, You're Not Going to Be Funny in a Courtroom."

That is DSK's lawyer Benjamin Brafman explaining the (potential) role of humor in a trial setting.

Good stuff.

Has William Levy Case Settled?

Someone told me that if you can sustain and maintain certain heightened feelings for as long as possible, the ultimate resolution will be that much more satisfying.

Of course I am referring to Hispanic novella/soap star William Levy's lawsuit pending before Judge Moreno (prior coverage here):
As a result of the mediation, there has been a tentative resolution of the California case between the parties whose scope covered the instant case.  The terms of the settlement are confidential.

The parties have stipulated to a sixty day (60) stay.
You know, some of you have very dirty minds.

Friday, June 3, 2011

Judge Marra Allows Columbian Paramilitary Suit Against Chiquita To Proceed.

 A closely-watched case involving application of the Alien Tort Statute and related terrorism claims against Chiquita for their alleged involvement with Colombian paramilitary groups will proceed in part, thanks to a 95-page(!) order from Judge Marra that grants and denies in part Chiquita's motion to dismiss.

I plan to read the whole thing as soon as I finally complete Proust's Remembrance of Things Past (I still have it on my bedside table, I promise!).

Yawn -- Judicial Crisis Rolls On.

All those empty federal judicial seats keep piling up, leading to new and interesting ways to restate the same dismal state of affairs:
[T]he Senate confirmed fewer of [Obama's] district and circuit nominees than every president back to Jimmy Carter, and the lowest percentage of nominees – 58% – than any president in American history at this point in a President’s first term. By comparison, Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter had 77%, 90%, 96%, 98%, and 97% of their nominees confirmed after two years, respectively.
HOORAY -- we beat Carter!

But it's not all the Senate's fault:
The White House has increased its focus on getting as many judges as possible through ahead of next year after criticism from Obama's liberal backers that the administration did not make it a big enough priority.

"The amount of resources the administration put into judicial selection is nowhere near what (President George W.) Bush put in," said Elliot Slotnick, a political science professor at Ohio State University.

Although Obama had enough Democrats to overcome procedural hurdles during the first two years of his presidency, the Senate approved just 60 appellate and district court nominees, the smallest number in 35 years.
This rings true.

Consider the 11th Circuit, which has two vacancies including one dating back to August 2010 but no nominees awaiting confirmation.

In the SD FL, we have three vacancies (all considered judicial emergencies), with Kathy Williams awaiting confirmation for a seat vacated in February 2009(!).

Judge Scola was nominated in May for a seat vacated back in August 2010, and the third vacancy has been pending since January 2011 with no nomination in sight.

You can read Kathy and Judge Robert a/k/a "Bobby" Scola's questionnaires here and here, respectively.

Thursday, June 2, 2011

What Area of the Law Has Kendall Coffey Not Yet Spoken On?

We've previously joked around here about Kendall Coffey's deep and broad knowledge of, well, just about everything.

So I suppose it shouldn't be surprising to learn Kendall is also a foreclosure law expert:
Kendall Coffey of Miami will be the featured speaker at an Annual Convention seminar titled “Foreclosure Jurisprudence in Florida after the Real Estate Collapse.”

Kendall Coffey The program, presented by The Florida Bar and LexisNexis, is set for June 24 from 2 to 4 p.m., at the Gaylord Palms Resort and Convention Center in Kissimmee.

This area of the law needs all the help it can get, btw, so this is good news.

Next up:  fixing Florida's offer of judgment jurisprudential morass?

Warrantless searches in the age of terrorism?

How to make a good pastrami sandwich?

(Any of the above would be fine.)

Seven Things I Love Right Now.

My brain is brimming with useless and pointless knowledge (to quote Bobby D), so let's get right to it:

1.  SYSTEM ENTRY - Docket Entry 1388 restricted/sealed until further notice. (nc)

Seriously, how may secret filings can there be in a coverage dispute over a broken yacht?

2.  Smart, articulate women attorneys (especially those who blog!)

3.  That rousing ode to American Danny LaRusso exceptionalism, "You're the Best.......AROUND!":

Question -- shouldn't it just be "You're the Best!".....period?

Isn't the "AROUND" tacked on at the end superfluous, maybe even dismissive?

Is he truly the best, or just the best that happens to be around in the general vacinity of the All-Valley Karate Championships on that particular day?

Speaking of American exceptionalism and politicians who tour around demanding loyalty oaths and exact phrasings of how great we are, I think Garry Shandling has it exactly right -- this is the political equivalent of 
Charlie Sheen running around with strippers and blow, exclaiming that he is #winning. 

(I'm sure it made sense at the time.)

4.  Arresting a bird watcher, in a Weston park, for "sage possession" is almost as stupid as arresting her for "pot possession."

5.  I cannot confirm with certitude that the photo allegedly tweeted by Anthony Weiner is of my package; I say this only because someone apparently photoshopped tighty-whities over it, no doubt someone suffering from "body darkness prejudice."

Why ruin a great photo?

6.  New Blu-ray edition of Night of the Hunter.

7.  Judge Walsh's investiture today.

Remember -- things could always be worse.

Wednesday, June 1, 2011

A Quick One While He's Away.

I went on YouTube hunting for Spencer Aronfeld's latest, but somehow wound up with the mind-blowing concoction you see above.

Ain't the intertubes friggin' grand?

3d DCA Watch -- 57.105 Day!

I'm pretty sure every lawyer loves to threaten another lawyer with section 57.105 sanctions, especially by email or letter.

Nothing is more momentarily satisfying yet ultimately devoid of any real significance whatsoever.

But when you go ahead and serve the motion, then your lasting feelings of superiority and Domineering Overlord Type-A Top Dogness kick in, at least for a day or two until you get a nasty response and a countermotion for fees and sanctions.

Which brings us to today's 3d DCA Watch and a fundamental rule of 57.105, the 21 day safe harbor period.

Who could possibly be unaware of this rule?
On appeal, the City argues that the trial court erred in granting the motion for attorney’s fees and costs because the claimant failed to follow the twenty-one day “safe harbor” provision of subsection 57.105(4). See generally Nathan v. Bates, 998 So. 2d 1178 (Fla. 3d DCA 2008); Burgos v. Burgos, 948 So. 2d 918 (Fla. 4th DCA 2007); O’Daniel v. Bd. of Comm’rs, 916 So. 2d 40 (Fla. 3d DCA 2005). The City points to the undisputed fact that the claimant failed to serve his motion for fees on the City twenty-one days prior to filing the motion with the clerk and presenting it to the trial court. The City also argues that the claimant failed to adhere to the requirements of subsection 57.105(4) by filing its motion on September 11, 2009, one month after the trial court entered the order granting the claimant’s motion for summary judgment. See O’Daniel, 916 So. 2d at 41 (holding that motion for attorney’s fees was untimely under subsection 57.105(4) where motion was served and filed following the conclusion of the trial).

Based on the authority of Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA 2007), we agree with the City that the trial court erred in granting the claimant’s motion for attorney’s fees and costs.
Come on, the 21 day period wasn't observed, seriously?

Yes, Virginia, this is why we have appellate courts.