Monday, April 30, 2012

"I Got My Divorce Lawyer from the Back of a Van"!

The bride on the side is a nice touch.

Stormy Monday (Again).

Greenberg Traurig oy!
The dismissal of Greenberg from nearly all things Rothstein is the talk of the cocktail circuit in South Florida's legal community.
Hey, at least they're finally discussing something law-related.

In other news, there is this:
A new survey found that Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997.  In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years.  In 2011, however, only 60 percent of companies so reported.  In contrast, the companies’ usage of mediation remained steady at around 80%.
 The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration.
Can someone let the Supremes know?

Saturday, April 28, 2012

3d DCA Watch Special Edition -- UM's "Wasteful and Frivolous in the Extreme" Appeal!

Are you an ardent 'Cane?

Do you only dream in U?

Do you in fact have a vanity Cane license plate which means you can share in the glory of the football team as if your old crinkled self personally scored that winning touchdown?

But hey it works both ways, if you self-identify and live vicariously through your college from 20 years ago you have to suffer their losses as well as well as bask in their wins, as if you yourself were liberated from Egypt (oops, still have Passover on the brain....).

So suffer you must in this special Friday Bunker Blast™ involving a scathing special concurrence from Judge Schwartz in a tragic med mal case out of Jackson Memorial:
SCHWARTZ, Senior Judge (specially concurring).

As evidenced by the fact that we have, by separate orders, granted the appellee’s motions for assessment of attorney’s fees against appellants as a sanction under Section 57.105, Fla. Stat., and Rule 9.410, Fla. R. App. P., this case is wasteful and frivolous in the extreme. I believe that it deserves only a quiet interment in the form of a PCA.
Aww, come on judge, tell us how you really feel!

Big big win from 3d DCA maven Barbara Green -- congrats!!

Friday, April 27, 2012

Hunger Games

The Intrepid One hits her investigative reporting stride on lunch.

And as usual, she nails it. She found powerful people lunching here. (La Loggia is, like, so 2011.)

This is a must-read, chock full of useful information.

Alexandra Bach Lagos, president of the Miami chapter of the Florida Association for Women Lawyers shares this: "I usually get a salad with brie and turkey. I try to stick to the salads. But the guys at my office love the pizza."


Jim Miller says "I'm always there by noon." And then he really opens up: "I listen to the specials carefully," said Miller. "The pizzas are great but I usually don't eat pizza for lunch cause it's kind of messy."

Which I guess means all the guys at SH & B are messy after lunch.

When Edith Osman is not eating cottage cheese at her desk, she dines at Fratelli because "It's not a fancy place."

I'll say. They don't even have a valet, and Judge Moreno walks there!

You see what I mean about this piece?

I can't remember the last time I ate cottage cheese. Its not really cheese.

All this culinary talk has made me saucy. Alas, Rumpole's reference tipped the scale to the movie version instead of Cocker live. After all, it is Friday.

N.B. On what Julie apparently regards as a less newsworthy note, the federal JNC today is interviewing the cabal of mostly state court judges who applied for the vacant federal district court seat. Good luck to all!

Lawyers Do Good Things Sometimes.

Say what you want about Spencer, but he does in fact put good things in motion, as evidenced above via the lawyers who donate their time and energy and all they get in return is a camera video with Spencer putting them on the spot and asking them a bunch of questions.

(You were warned -- send me some tips.)

Thursday, April 26, 2012

Hatfields and McCoys


I don't run.

But I love a good fight that consumes precious limited judicial resources, has zero impact on the greater good and establishes no precedential value, as much as the next civil litigator.

That's obviously not this case in which, as you may recall, for 8 years Tom Meeks Lowell Kuvin has fought to park his F-150 in his drive-way. "The law makes no sense, really, and when you [get going] ya gotta finish it..." said Meeks Kuvin.


Kuvin earned his J.D. during the litigation and like most succesful lawyers today with busy practices, started a blog to further his pick up litigation.

Cursing the PCA opinion from the bunker? Or the denial of cert from Tally? This case had the en banc Third reverse a panel of that Court, and the F.S.C. weighed in. An issue of great pubic importance or statutory interpretation, indeed.

I guess the blog worked. After the expenditure of resources by both sides to press on with the epic 8 year legal battle, spent from battle, The Planning and Zoning Board is changing course. Sort of. The proposed law has many "details," to wit:

- The pickup can’t have more than two axles and four wheels. (We call those "duelies".)

- No Gunracks allowed.

- No women may be in or around the truck, while wearing "short-shorts".

- No chewing tobacco while driving the truck.

- Only the front of the pickup can face the street. (I have a real problem with this one, as sometimes its easier to have the rear out.)

Personally, since my practice is slow, I am considering a push to permit mailboxes held by grey, chubby, lifesize manatees and the like. I figure that as long as we don't allow The Rock and Roll into The Gables, we should be ok.

Corporate Run, Rabbit, Run!

Do you want to know what your boss looks like in compression shorts?

Are you dying to learn whether senior executive sweat pools in the upper or lower back?

If so join me and 22,000 other fitness-minded professionals as we create massive gridlock, kill all productivity across the city, run around downtown in a giant circle, and finish by entering something called "the chute." 

(I assume that's a euphemism?)

Like all of you I have my standard pre-race rituals -- the Gin Gibson water bottle (to induce the burpees), the full bikini wax (to increase speed), the autographed photo iron-on tee shirt of the entire cast of Carter Country (for inspiration, 'natch!).

"Handle it, Roy, handle it!"

Have fun kids, and see you at the whole-wheat bolognese tent!

Wednesday, April 25, 2012

3d DCA Watch -- Little Victories, Or a Tale of Two Judges.

You think it's hard for practitioners to make sense of Florida law sometimes, well it's not so easy for our appellate judges either.

Consider Judges Ramirez and Shepherd.

They both have Fidelity-Philadelphia Trust Co. v. Ball, 208 So. 2d 282 (Fla. 3d DCA 1968) as potential authority in a case where two Co-Trustees paid their own fees without court approval from the trust, leaving inadequate funds in the trust to pay an award of fees to the Beneficiary's counsel, after a full trial in which the Beneficiary prevailed.

The issue is whether the Beneficiary should have filed a separate suit against the Co-Trustees for breach of fiduciary duty and served them in their individual capacity.

Judge Ramirez in a concurrence finds that Fidelity is "totally different," while Judge Shepherd finds "the facts of Fidelity to be indistinguishable from the facts of the case before us."


How can it be both?

I guess that's why we have appellate courts.

South Florida Coastal Elec. v. Treasures on the Bay:

Here Judges Ramirez and Lagoa disagree on whether the defendant injected "agency" as an issue in a breach of contract claim by asserting a"vague" affirmative defense.


Gotta love state court.

Geico v. Virtual Imaging:

Judge Rothenberg continues her dissent from Geico I involving how PIP insurers should treat the fee schedule in paying reasonable expenses for medical claims, and they all certify the following super important very important muy importante question to the wise elders in Tally:
Why is it still the convention to "all cap" questions certified to the Supremes -- will they not see it otherwise?

Little victories.....

Tuesday, April 24, 2012

Gaze Upon Your 3d DCA Applicants!

Not to get all Captain-ey, but here's a list of people who want to imbibe the bunker juice:
Honorable Antonio Arzola
Andrew Scott Berman, Esq.
Jonathan D. Colan, Esq.
Honorable Jorge E. Cueto
Esther  E. Galicia, Esq.
Sergio Garcia-Pages, Esq.
Honorable Darrin P. Gayles
John A. Greco, Esq.
Honorable Milton Hirsch
Judith M. Korchin, Esq.
Susan Scrivani Lerner, Esq.
Thomas W. Logue, Esq.
Madelyn Simon Lozano, Esq.
Charles Mays, Esq.
Honorable Jose M. Rodriguez
Eduardo I. Sanchez, Esq.
Honorable George Alexander Sarduy
Edwin A. Scales, III, Esq.
Ann M. St. Peter-Griffith, Esq.
Steven E. Stark, Esq.
Hey, not a bad list! 

For some reason this song just popped into my head (where's Judge Goodman when you need him?):

Glenn Squared -- The Apocalypse is Officially Here.

What does it mean when the ideologically separated-at-birth brothers Glenn -- Garvin and Greenwald -- both agree that our government's inhuman drone war is, well, inhumane and spinning out of control?

Maybe that third-way consensus business Thomas Friedman is always prattling on about has some merit?

"I'm sorry Dave.  I'm afraid I can't do that."

In other news, Rumpy and Random Pixels report that somebody tweeted something.

What am I missing -- if it wasn't about the trial, where's the harm?

BTW, I just had the pleasure of seeing Square Grouper, Rakantur's riotous look at Miami's drug culture in the late 70s-early 80s.

Brings back those burned-out-Porsche memories....

PS -- lots of good stuff in there (some of it negative) about Judge King's lengthy sentencing of Robert Platshorn of the Black Tuna Gang.

C'mon kids -- what else is happening?

Monday, April 23, 2012

You Mean There Are Deadlines in that Mag's Scheduling Order?

When Magistrate Judge Simonton enters a Scheduling Order that has language that is both bolded and underlined, does that mean anyone should really pay any attention to it?

I certainly don't think so:
The Order Setting Trial and Pre-Trial Schedule (DE # 11, the “Scheduling Order”) entered in this case establishes expedited procedures with respect to discovery motions. This requirement is set forth in bold and underlined at page three of the Scheduling Order.
Ok ok, but my office staff screwed it up:
First, defense counsel in the Verified Motion has attributed his failure to comply with the bold and underlined briefing requirements in the Court’s four-page Scheduling Order to his lack of knowledge of its contents, and otherwise points to clerical staff in his office as the responsible parties. The Verified Motion states that the Court’s briefing requirements were “never documented. This resulted in [defense counsel] being unaware that an expedited response to Plaintiff’s discovery motion was required” (DE # 25 at 4-5) (emphasis added). This statement is, at best, discouraging; counsel states that he had no knowledge of the Court’s deadlines because others in his office failed to properly review and summarize the Scheduling Order for him.
 Ok ok ok, so maybe I should have read the darned thing too.

But what about the fact that CM/ECF spit out a different deadline?

That's gotta mean something!
Moreover, the undersigned rejects out-of-hand Defendant’s secondary explanation that CM/ECF had generated a later due date for the response to Plaintiff’s Expedited Motion to Compel, which Defendant attaches as Exhibit 1 to its Verified Motion. In this respect, the undersigned observes, in the same bold and highlighted paragraph on page three of the Scheduling Order containing the briefing requirements, the immediately concluding sentence, which states, “Any contrary deadlines that may appear on the Court’s docket or the attorneys’ deadline report, generated by CM/ECF, cannot serve to modify this Order” (DE # 11 at 3).
 Oh boy.

Friday, April 20, 2012

Can You Sue Your Bank for Failure to Offer Loan Modifications?

A question of first impression before the 11th Circuit is whether a borrower can sue her bank for failure to offer a loan modification in violation of the much-publicized federal mortgage relief programs passed in the midst of the 2008 economic crisis, the Home Affordable Modification Program (HAMP) and the Emergency Economic Stabilization Act of 2008 (EESA).

Short answer:  NO:
When we apply these factors to HAMP and EESA, it is clear that no implied right of action exists. First, EESA and HAMP were designed to “provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States.” 12 U.S.C. § 5201(1). EESA was not passed for the “especial benefit” of struggling homeowners, even though they may benefit from HAMP’s incentives to loan servicers.

Second, there is no discernible legislative intent to create a private right of action; in fact, the legislature gave the Secretary the right to initiate a cause of action, via the Administrative Procedure Act. Id. § 5229(a)(1). Third, providing a private right of action against mortgage servicers contravenes the purpose of HAMP—to encourage servicers to modify loans —because it would likely chill servicer participation based on fear of exposure to litigation. And fourth, “[c]ontract and real property law are traditionally the domain of state law.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 174 (1982).
 So that's pretty much the end of that. 

(Or maybe the banks will magically comply with the law?)

Friday blog bonus--read Roy Black's bond motion in the John Goodman DUI manslaughter case!

Thursday, April 19, 2012

"Nobody Threatens Elizabeth Wellborn."

That's what her husband allegedly said to employees wearing orange who were all fired at WPB attorney Elizabeth Wellborn's foreclosure shop, according to John Pacenti's fine reporting here.

I don't know what the problem was -- it certainly seems like a humanistic, loving work environment according to Donna Ballman, counsel for some of the fired employees:
Ballman said some of the fired employees were upset with policies such as no talking over cubicle walls even for business purposes. Workers suddenly had to explain why they were using the breakroom or if they worked one minute overtime or left one minute early.

"It was a lot of picayune stuff," Ballman said. "All of sudden, the firm went from a very pleasant and enjoyable place to one of very strict working conditions."
And at least there is some sense of regret over how things could have been handled differently:
"I wish former employees had not engaged in harassing, bullying and intimidating behavior. Then we would not have had to let them go."
Good thing the work itself is so enriching and life-affirming!

(PS -- I don't know for sure, but they may be hiring.)

Wednesday, April 18, 2012

3d DCA Watch -- Welcome to BIB!

The short-sleeved robes are out at the bunker, heralding the cyclical change in bunker seasons typically running from mid April until late this year when the mechanical closet/gym is transformed into the swanky, ultra-chic BIB (aka Bunker Ice Bar).

For those who have never been, BIB is an invitation-only, must-see sensory experience -- the ice sculpture of Judge Schwartz is reason enough to find a way in past the velvet ropes concrete doors, not to mention the famous BIB house cocktail, a heady concoction served in a gavel glass molded from clear ice and known simply as the "Apodictic Doppelganger."

Hmm, I'm seeing double already.....


E&H Cruises v. Baker:

Venetian Salami, peoples!

Valesquez v. South Florida Federal Credit Union:

Judge Salter holds his nose and but otherwise affirms how a credit union "aggressively" went after the repossession of a couple's boat.

Deutsche Bank v. Cagigas:

How many times have we gone over the Kozel factors, trial judges?

Sheesh -- make the express findings before you dismiss a case as a sanction.

It's the least you could do (plus it's the law).

So the 11th Circuit Does Reverse Summary Judgments Sometimes.


We always hear about the abysmal reversal rate before the 11th Circuit, but miracles do happen, even when they involve our highly esteemed Chief Judge:
In a supplemental summary judgment order the district court held as a matter of law that the purchase price of LanBox was $450,000. In its analysis, the district court rejected LanLogistics’s argument that, under the reasoning in Pantry Pride Enterprises., Inc. v. Stop & Shop Cos., Inc., 806 F.2d 1227, 1231 (4th Cir. 1986), the determination of the purchase price of a company in a package purchase requires that the fair market value of the company be considered. We find the reasoning in Pantry Pride persuasive and the district court’s holding in error.
. . . . 
Because the issue of LanBox’s purchase price was disputed and the fair market value of LanBox and the other companies in the package deal should have been considered, summary judgment was improper. By deciding the issue on summary judgment before LanLogistics had an opportunity to present evidence on the fair market value of the companies or possible tax incentives for its purchase price allocation, the district court prematurely decided a disputed issue of material fact. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1264 (11th Cir. 2007).
In other news, I know a lot of you are fitness enthusiasts and are gearing up for the Corporate Run next week, so here's another interesting charity race for a good cause -- see you there!

Plus tonight begins Holocaust Remembrance Day.

(Wow, those three things do not go together.)

Tuesday, April 17, 2012

When Is a "Shotgun Pleading" Not a "Shotgun Pleading"?

According to Judge Marra, it's when the defendants can understand the claims made against them:
“Shotgun” pleadings are pleadings in which it is “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Tr. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). The Court finds that the Complaint is not a shotgun pleading necessitating dismissal.  Although each count of the Complaint does incorporate by reference all of the preceding allegations, the Court finds the claims are sufficiently definite to enable Defendants to know with what they are charged and to enable Defendants to respond to the allegations. The motion to dismiss the shotgun pleading is denied.
Practitioners, why not just avoid this issue by not incorporating every prior allegation into each count?

Really, how hard is that?

In other news, as David reports, the Bar royally screwed up in how they characterized their "monitoring" of the "underlying proceedings" in a well-publicized case involving Lewis Tein.

Fortunately, I have obtained inside footage of the Bar grievance committee sessions, which seem to be unfolding in the usual manner:

My one piece of advice to these very good attorneys (not that they need any) -- get a mouthpiece/lawyer to do your talking on these types of matters, it's more effective that way.

Monday, April 16, 2012

They Still Write Editorials?

I'm pretty sure that's what the interwebs need more of -- opinions.

Even so, this is a rare burst of clear-eyed advocacy from a Miami Herald editorial page often devoid of opinions worth discussing:
The commission should make smooth functioning of the court system a priority when it examines in detail the budget approved by the Legislature and sees what funds are available after the governor’s budget vetoes.

This, though, would be just a temporary patch. The bigger job is to put funding for the court clerks on a rational basis, one that complies with public expectation of good customer service at each court clerk’s office, litigants’ need for efficient handling of cases, and the constitution’s requirement of adequate financing. 
Ok, I guess it's still kinda milquetoast but remember, we are talking about the Herald editorial page.  

In other news, can you believe an undocumented immigrant actually wants to practice law in Florida?

The horrors:
Can an immigrant without a green card get a Florida Bar card?
Aspiring lawyer Jose Godinez-Samperio, 25, a Tampa-area resident, is hoping the answer is yes.

A native of Mexico who entered the United States legally with his parents 16 years ago on a tourist visa, Godinez-Samperio is a graduate of the Florida State University College of Law, the valedictorian of the Armwood High School class of 2004, an Eagle Scout — and an undocumented immigrant.

That last quality may keep him from achieving his dream.

The Florida Board of Bar Examiners, which grants membership to the Bar, has asked the state Supreme Court to determine whether it can accept someone who is not in the country legally. The Supreme Court flagged the case as "high profile" last week.
Certified Legal Legend Sandy D'Alemberte says yes:
"It is unfair to deny him the credentials he's earned," said D'Alemberte, noting that there's nothing in the "Rules of the Supreme Court Relating to Admissions to the Florida Bar" that requires applicants to prove their immigration status.

In fact, D'Alemberte said, Godinez-Samperio has been candid about his status at every opportunity, disclosing it on college and law school applications (his application to law school included an essay titled "The Consequences of my Criminal Childhood," although being in the country illegally is a civil infraction, not a crime).
Sandy is joined by former ABA Presidents Martha Barnett and Steve Zack.

Other the other hand, there are these guys:
"No one who has shown this guy's level of contempt for American law should be practicing law," said William Gheen, president of Americans for Legal Immigration, a political action committee that opposes amnesty for undocumented immigrants.

Tom Fitton, president of the conservative watchdog group Judicial Watch, agreed.
"He can't practice as a lawyer," Fitton said. "He is not legally able to work in the United States. … It seems to me that it would be an absurdity to give him a Bar card at this point."
Hmm, if "contempt for American law" was the standard I could think of quite a few lawyers and maybe a Supreme Court Justice or two that might fall afoul of that one.

But maybe I'm wrong.

As the old saying goes -- which side are you on?

Read more here:

Friday, April 13, 2012

Practitioner Discovery Tip: Your Discovery Objection is Meaningless (Shh, Don't Tell the Client).

We all know how it works when you get discovery from an opposing party:  have your secretary pull up some form responses, start loading it up with objection after objection; make sure to object to the definitions and instructions; pretend you have no possible understanding of what is being asked for; parse every word of every request and tease out every available meaning, no matter how absurd, so you can object on vagueness grounds, and basically jerk the other side around, buy some time, and get them to "narrow" the requests so you can go through the whole process all over again.

Oh yeah -- then bill the client 12.2 hours.

Well, apparently Judge Rosenbaum thinks this kind of approach may be problematic:
Objections that state that a discovery request is “vague, overly broad, or unduly burdensome” are, standing alone, meaningless and do not comply with both the Local Rules and Rule 34’s requirement that objections contain a statement of reasons. See Pitts v. Francis, 2008 WL 2229524, *2 (N.D. Fla. May 28, 2008). A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome. See Benfatto v. Wachovia Bank, N.A., 2008 WL 4938418, *4 (S.D. Fla. Nov. 19, 2008) (citing Convertino v. U.S. Dep’t of Justice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008)). Since Morgan has not indicated how Request 4 is overly broad or unduly burdensome and because she has further not provided any evidentiary support for her bald assertion of burdensomeness, the Court overrules Morgan’s objection in this regard and grants the Receiver’s Motion to Compel a complete response to Request 4.
Nice job Judge!

(The Force is strong with this one.)

Thursday, April 12, 2012

3d DCA Watch -- Engle Progeny Edition!

When does a "bad cough" trigger the statute of limitations in a post-Engle Florida tobacco case?

Never, says the 3d:
In the direct appeal, Ms. Frazier relies upon a carefully-protected record on the statute of limitations evidence and on the jury instruction and verdict forms. Regarding the evidence, and in particular the speculative, clear-in-hindsight-only testimony of Dr. Schroeder, Ms. Frazier sought and obtained an appropriate order in limine, and she objected as well. Dr. Schroeder could not and did not render competent testimony about what Ms. Frazier knew or might reasonably have known regarding the “manifestations” of her Engle-eligible COPD/emphysema and the causal relationship of those manifestations to the cigarettes produced by the appellees. He violated the order in limine as his testimony ventured into what was not “manifest” in 1986 and 1987, whether to Ms. Frazier or her treating physician. The manifestations of her COPD/emphysema did not begin, on this record, until 1991, a date within the statutory limitations period.
Great opinion by Judge Salter!

Clark v. Bluewater Key:

Judge Shepherd dissents "en haec verba"  -- hmm, not familiar with that term -- does he mean In-A-Gadda-Da-Vidda?

(Warning on the video -- you will never get those 17 minutes back!).

AJH Property v. SunTrust:

Big win for Jared Beck in reversing a Judge Bagley summary judgment! 

In other news, CABA withdraws its sponsorship of Lawyer Appreciation Night at Marlins stadium.

Good and I agree -- it's difficult to appreciate most lawyers for even a minute, let alone a whole night. 

Wednesday, April 11, 2012

Tramps Like Us, Baby We Were Born to Cite!

The big day is almost here, see you all at lunchtime:

Guest Speaker:
The Honorable Jonathan Goodman, United States Magistrate Judge,
will address the must-hear-this topic:

"Rock & Roll Music in Judicial Opinions"

When: Wednesday, April 11, 2012
11:45 a.m. - 1:15 p.m.

Where: The Bankers Club
One Biscayne Tower
2 South Biscayne Blvd., 14th Floor
Miami, FL 33131
I'm sure the good Judge will point out that none other than Bobby D is the most-cited songwriter in legal opinions.

Here is the list from a recent study:

1. Bob Dylan -- 186 instances
2. The Beatles -- 74 instances
3. Bruce Springsteen -- 69 instances
4. Paul Simon -- 59 instances
5. Woody Guthrie -- 43 instances
6. Rolling Stones -- 39 instances
7. Grateful Dead -- 32 instances
8. Simon & Garfunkel -- 30 instances
9. Joni Mitchell -- 28 instances
10. R.E.M. -- 27 instances

Question -- is it possible to cite a song lyric in 300 characters or less?

Survey says:
3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.
 And also:
The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). Waiting_(song) (last visited 5/16/2011). See also (last visited 5/16/2011).
Oy veh -- next he'll take two paragraphs to explain what "it's better to be safe than sorry" means.

(Strike that).

Oh I kid the good judge -- the fact is this will be a fantastic presentation and I'm really looking forward to it.

See you all at lunch!

Tuesday, April 10, 2012

"I am Honored and Humble that the President is Coming to my Home"!

 Of course he is:
"This is a day that should not be tarnished by gossip and innuendo that have no basis in fact."
Question -- shouldn't every day?

Are you getting ready for Magistrate Judge Goodman's big speech tomorrow?

Be there or be square, kiddies.

Monday, April 9, 2012

Magistrate Judge Goodman Practice Tip #214: Don't Email Me Your Views on Proposed Orders!

 It was always my understanding that the email address provided for the submission of proposed orders in federal Court was to be used strictly to (1) delight the Judge with your cute kitten pictures; (2) share highly partisan derogatory quips about President Obama (they're so funny!); and (3) involve the Judge in ponderous email chains that require the recipient to forward long-discredited urban rumors to ten "friends" or else face doom and gloom and the death of the aforesaid cute kitten.

Oh yeah -- and also to let the Judge know you substantively object to a proposed order.

But Magistrate Judge Goodman apparently thinks otherwise:
Counsel of Record may submit proposed orders on motions, where required by a rule or procedure of the Court, to the Court's e-file inbox. However, counsel may not email the Court for any other reason. For example, counsel may not send an email response to the submission of a proposed order. If a party objects to a motion, then the only appropriate procedure is to file a formal , written objection with the Clerk of Court.
Sheesh, come on folks -- you're not in state court anymore!

(BTW, is it just me or is the Judge being deliberately vague as to cute kitten pictures?)

I think so......


Friday, April 6, 2012

Stay Away, Joe: Klock Inevitably Invokes "Peace Pipe" in Tribal Motion to Disqualify!

How is The Intrepid One™ able to elicit such delicious quotes?

(Maybe you need to interview the right people.)

Continuing her blockbuster reporting on the growing Miccosukees vs. All Their Former Lawyers mess, Julie managed to ask Joe about a motion to disqualify his law firm RKRPEVN, (aka the spy agency from Get Smart?) which is representing longtime former tribe attorney Dexter Lehtinen.

The motion was filed by current tribe attorney Bernie Roman:
"The idea that I represent other people that are adverse to the Indians so I can't represent Dexter is ludicrous," Klock said. He said adding that Roman, the tribe's Miami attorney, "has been smoking something. He must be passing around the peace pipe. It's hard to take this motion seriously."
I'm glad Joe stopped there.

In fact, it's taking every fiber in my being to not run with this and throw in every impermissible historic pop cultural Indian reference and/or caricature lurking in my subconscious and just set off on a wildly inappropriate yet epic riff.

But it's a holiday so I'll just note that I'm with Joe on the merits here -- the motion makes no sense, Ke-mo sa.... shoot!

The motion makes no sense.

Thursday, April 5, 2012

Judge King Nixes Delta Baggage Delay Reimbursement Case!

Did you know you are entitled to up to $3300 in expenses from Delta if your bags are delayed?

Neither does anybody else.

But in a suit brought by Aaron Podhurst over Delta's failure to advise customers of this policy, Judge King has dismissed the suit with prejudice, holding that it is preempted under the Airline Deregulation Act:
Plaintiff's claims clearly rest on allegations that "relate to the heart of services that an airline provides.'' Koutsouradis, 427 F.3d at 1344 n.2. Permitting this claim to move forward as plead would thus impermissibly sanction regulation of the manner in which the airline advertise their reimbursement services and would interfere with the provision of baggage handling services to their passengers, thereby offending the stated purpose of the Deregulation Act.
You can't win 'em all, I guess.

Oh yeah -- happy almost Good Friday, plebes!

Wednesday, April 4, 2012

3d DCA Watch -- New and Improved, Now With "Citation Opinions"!

The Scene:  a hushed emergency meeting convened in the bunker's ornate central conference hall (also serving as the court "gym" and alternatively its "mechanical room/electrical closet").

Attendees: bunker denizens, evenly divided into "pro" and "con" on the topic at hand, many holding signs and cheering for their respective positions.

(There is no truth to the rumor one participant appeared fully adorned in body paint with the words "PCA" emblazoned in a particularly memorable area).

The Topic at Hand:  whether or not to create a new category, in addition to Opinions and PCAs, for "Citation Opinions."

The Debate:  It unfolded in the usual manner, with proponents of one side or the other hurling spit balls made from prior Court rulings, giving each other "robe-wedgies," and exchanging valuable Pokemon cards for promises of support and subtle changes in alliance or position.

(Hey, trends take a while to make their way through the concrete.)

The Verdict:  After much soul-wrenching debate lasting more than 72 straight hours, a thin puff of white smoke emerged from the bunker -- signaling to the eager crowds gathered outside that yes, yes, and yes!! -- a new category has indeed been created.

Behold those who bitterly cling to their outdated chardonnay, Opinions, and PCAs, it has been thusly revealed:


And here is an example of the Court's newfangled handiwork:
Affirmed. See O’Brien v. State Farm Fire & Cas. Co., 999 So. 2d 1081 (Fla. 1st DCA 2009); Weesner v. United Servs. Auto. Ass’n, 711 So. 2d 1192 (Fla. 5th DCA 1998); Tres v. Royal Surplus Lines Ins. Co., 705 So. 2d 643 (Fla. 3d DCA 1998).
Suck on that, 4th DCA (which doesn't even provide links to their PCA affirmances)!

"You Can Say Anything You Want in a Lawsuit."

Can you?

That's Yale Galanter, responding to a suit brought by his Nevada co-counsel Gabriel Grasso who has sued Yale for not paying him to help represent OJ:
Gabriel Grasso alleges in a civil breach of contract lawsuit that he was promised $250,000 to serve as local attorney following Simpson's arrest in September 2007. But he said Yale Galanter only paid him $15,000.

Galanter told The Associated Press that he hadn't been served with the lawsuit and couldn't comment on it. But he said he intends to fight.

"You can say anything you want in a lawsuit. Proving it is another matter," Galanter said Tuesday. "Gabe Grasso got paid everything he was supposed to get paid commensurate with his skill level, his ability level and his responsibilities as local counsel in Las Vegas."

The 17-page lawsuit, filed Friday filed in Clark County District Court in Las Vegas, seeks unspecified damages in excess of $50,000. It cites "extensive and time consuming" proceedings between Simpson's arrest in September 2007 and trial a year later.

Galanter, who is licensed in Florida but not Nevada, engaged Grasso as a Nevada lawyer and obtained permission from the trial judge to take part in the Simpson case in Las Vegas.

Grasso's lawyer, Joshua Tomsheck said Tuesday that Grasso did "the lion's share of the work." Grasso declined comment.

"They had a legal, binding agreement," Tomsheck said. "All the motions were filed by Gabriel Grasso. All the Nevada legal research was done by Gabriel Grasso. The agreement was that he would be paid for his expertise."

If you can say anything you want in a lawsuit, I'd like to try some romantic poetry, perhaps "Valentine" by John Fuller?

You know, lighten the mood in the introductory paragraphs up a little bit:
The things about you I appreciate may seem indelicate:
I’d like to find you in the shower
And chase the soap for half an hour.
I’d like to have you in my power and see you eyes dilate.
I’d like to have your back to scour
And other parts to lubricate.
Sometimes I feel it is my fate
To chase you screaming up a tower or make you cower
By asking you to differentiate Nietzsche from Schopenhauer.
I’d like to successfully guess your weight and win you at a fete.
I’d like to offer you a flower.
Denied and admitted in part -- admitted as to finding defendant in the shower, denied as to chasing said soap for "half an hour;" the remainder of this paragraph is denied, including the alleged offer of a flower, and defendant hereby demands strict proof thereof.

(I've seen crazier things in pleadings.)

Tuesday, April 3, 2012

11th Circuit to Florida Supreme Court: Oy, What a Mess!

Here's a seemingly simple question that does not have a simple answer:
Does Florida’s PIP Statute, FLA. STAT. § 627.736, permits EUOs as a prerequisite to receiving PIP benefits?
Answer:  who the hail knows?  It's like New England weather -- if you don't like it, stick around it will surely change.

And this is the 11th Circuit's polite way of saying, hey it's Florida law we're talking about, situation normal all.....
Although we believe the Florida Supreme Court’s statements regarding EUOs in Custer are dicta and not binding, Florida law is far from clear.
You think?

You have Florida Supreme Court dicta, legislative history, contrary opinions from the same Appellate Division of the Eleventh Judicial Circuit Court, different intermediary appellate court decisions, and a partridge in a pear tree.

(Wait until you get a Florida offer of judgment case!)

Marc Caputo: Both Sides Now.

Certainly one of the most frequently voiced criticisms of the mainstream media is the use or overuse of false equivalencies -- the notion that "both sides do it" in exactly the same amount, in exactly the same way, there is no difference between the two sides, and therefore we the mainstream media are perfectly balanced in repeatedly noting this enduring political reality.

And let me get my "to be sure" paragraph out front about Marc Caputo -- he's a very good reporter, exceptional perhaps (clearly for the Herald), and that's why it's distressing to see Marc's recent trend of looking around and finding the exact same thing on both sides of the aisle.

Here's Marc today finding both sides to be in exact equipose regarding Trayvon Martin.

Here's Marc last month finding exact equipose between Marco Rubio birthers and Obama birthers.

Marc, enough!  Get back to your good, solid reporting.

Question -- is everything always binary?  Maybe there are more than two sides?  Are the two sides always exactly the same?  On some issues could one side be worse than the other?

Ok, actual legal news -- the Florida Senate has hired our own Raoul Cantero (at $695 an hour) to lead the charge on a second bite at redistricting.

Check out the retainer agreement here.

And no, I'm not commenting on the tribe suit -- the complaint seems like a cheap shot to me.

Seriously, who gives a holy hail about somebody's clocks?

Monday, April 2, 2012

Marty Steinberg is "Highly Coveted"!

And Bilzin's got him:
"There was intense competition, Literally every firm in town was trying to get him," he said. "He is clearly one of the top commercial trial lawyers in the country. He does litigation for Fortune 100 companies all over the country."
There's also this potential business about a mandatory management retirement policy:
Numerous sources said Steinberg was not pleased with Hunton's mandatory retirement policy for firm leaders, which bars managers older than 65.

Steinberg denied that's why he left Hunton, saying the firm waived the policy for him. However, the firm named a co-managing partner in Miami last year, Juan Enjamio.
Hmm, I understand the impulse but that sort of prophylactic rule has a Wild in the Streets/Logan's Run feel to it.

(Oh hail, let's just go there):

65 is the new 35, baby!

Congrats on the move, Marty.

So who steps in to as the go-to litigation macher at Hunton?

Your Case is Next - Right After the First 368,000!

How's your civil action going in state court?

According to this DBR story, not too well:
As attorneys across South Florida absorb the news of yet another budget cut to clerks of the court by the Legislature, they foresee business costs rising and securing justice for clients getting harder.

The Legislature surprised the state's elected clerks during last-minute House-Senate conference talks by whacking their budget 7 percent, or nearly $31 million.

If the county clerks responded with layoffs alone, about 900 employees statewide would be out of work July 1.

This will be the fourth consecutive fiscal year clerks have taken a hit. Since 2009, their budgets have shrunk by just over a quarter.

This is causing anger among trial attorneys, particularly attorneys who specialize in civil litigation. Clerks must give priority to criminal proceedings, so resources shift at the expense of civil courts.
Has it occurred to Governor Scott that a conducive business environment requires an operational civil justice system?  You know, so businesses can settle legal disputes without resort to swords and direwolves?

Meanwhile, David Stern explains the tactful way he broke the bad news to his employees:
"There's nothing left for you here. There's nothing left for me here. We're done. And that's the end of the story,"
"Also, Liz left some awesome home-baked cookies in the kitchen -- yum!" 

Too bad so sad about all those cases languishing in the court system:
And the 368,000-case backlog in the state's foreclosure courts has grown as the Stern firm's wayward files added to the logjam, some attorneys said.

"Let's face it : Florida was struggling with foreclosures in the first place," said Sylvia Ayalon, a former analyst at the Consumer Mortgage Audit Center in Fort Lauderdale, who now works for Fembi Mortgage in Miami. "That combined with a defective process, the large footprint of the Stern firm, and the backlog just continues to grow."
"Did I mention the awesome cookies -- yum!  Thanks again, Liz.