Wednesday, October 31, 2012

3d DCA Watch -- Special All Hallow's Eve Edition!


It's a special day inside the bunker, as the denizens get in the All Hallow's Eve spirit by swilling dark red "blood" coffee, munching on bowls of "eyeball" candy, and dressing up as their favorite Supreme Court Justice (guess who wore the Scalia mask this year, again!).

Me, I'm in my usual costume -- a full body suit composed of whole wheat pasta bolognaise -- sure it takes a lot of work and gets a little sticky by the end of the day but you never know, this might be the year it all comes together!


Let's dig into these truly spooktackular opinions:

Pietton v. Evertz:

One thing I love about state court is you can literally title your motion any way you want -- the more elaborate and specific and pejorative the better -- like this epic ex parte “Motion for Order Approving Settlement and to Enjoin One of the Potential Beneficiaries from Interfering with the Administration of [the] Probate [Estate] and from Taking Action Contrary to the Personal Representative’s Authority.”

With a title like that, what's left to put in the motion?

Roberts v. Roberts:

Note to trial judges:  if you impose attorney's fees as a sanction, best have an evidentiary hearing and put your findings in an order.

Come on, that's just downright apodictic!

Be safe tonight.

Tuesday, October 30, 2012

Judge Carnes on Lions, Donkeys, and Hides!

As far as I can tell, this is a case about whether telephone carriers should have to disburse to customers fees they collected pursuant to a FCC requirement imposed upon the carriers that has since been held illegal.

But Judge Carnes has bigger donkey hides to fry:
That is the motivating issue in this case, but it is not the specific question presented by this appeal. Instead, the question we have is whether the district court has subject matter jurisdiction to decide that issue. In answering that question, we are reminded of Justice Holmes’ view about the comparative difficulty of deciding cases. He said that “when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.” In our experience that view is not always accurate, but it is here. The best way for us to get the hide off the lion in this case is to summarize the applicable law, including the relevant FCC orders, before setting out the procedural history and facts. Be forewarned that there is a lot of hide.
ba-dum-tshh!

At this point the 11th should just start embedding a "rim shot app" so you can appreciate these opinions in all their glory.

Your Tuesday Morning Digital Dump!



Hi there, it feels a little slow around town -- where are all the juicy tips?

Let's see what is happening this morning in South Florida:

1.  The Intrepid One reports on a Boca law firm closing:
Boca Raton-based Rutherford Mulhall laid off most of its attorneys and staff and is planning to dissolve the 22-year-old law firm, sources familiar with the situation said Monday.

The firm has been on a slide for several years, closing offices in Fort Lauderdale, Plantation, West Palm Beach and last month, in Palm Beach Gardens.
Excuse me dear Julie, but in the law biz we don't call that "a slide" -- we call it "consolidation."

2.  The friendly folks at the SD FL website have put together a nice Q&A on how to redact docs properly:
Probably the most effective means is to (a) use opaque (100% impenetrable by light) tape/ paper to cover the information to be redacted; or (b) literally cut-out text to be redacted – from a copy, not the original – and shred the clippings.
Ok, I became a lawyer because I am terrible at arts and crafts -- can I ask my nanny to help?

3.  Rick "Rick" Yabor advises his client to take the 5th:
"On counsel’s advice, I invoke my rights under the Fifth Amendment of the Constitution of the United States not to answer or submit the information requested on FEC Form 3, on the grounds that I may incriminate myself," Justin Lamar Sternad wrote Oct. 19 in a just-posted letter to the Federal Elections Commission.

"Please refer all additional inquires to my attorney, Rick L. Yabor."

Yabor declined comment, citing the pending FEC investigation.

Questions from the FEC were bound to arise after Sternad filed 17 blank pages as his campaign close-out report for October.
Au contraire Marc -- maybe those 17 pages are not in fact blank -- perhaps Sternad simply "use[d] opaque (100% impenetrable by light) tape/ paper to cover the information" that he filed?
ad more here: http://www.miamiherald.com/2012/10/29/3073381/justin-lamar-sternad-invokes-fifth.html#storylink=cpy



Monday, October 29, 2012

Get Out and Protect the Vote, Plebes!


So armies of volunteer lawyers, well-trained by the beardless bow-tied one, are out and about this week at early voting locations trying to encourage potential voters to stick it through, wait it out, and fill out the five-page double-sided ballot(!) that closely resembles my law school Con Law I exam.

Ain't democracy grand?

Yesterday I saw my pal Bob Fiore exercising his right to vote, dressed snazzily in a guayabera, and in fact everyone should early vote to relieve pressure on election day.

Note to Howard Srebnick -- if you early vote, you don't have to worry about being in the wrong precinct!

The Herald's Marc Caputo thinks proof of long lines at early voting sites that have reduced hours of operation means it was all "liberal spin" about GOP voter suppression efforts:
But the evidence of the longer, stronger lines also conflicts with a talking point from liberals: That the Legislature engaged in “voter suppression” by reducing the number of early-voting days from 14 to eight.
Is that really what you think a long line means?

When you have to wait 45 minutes in line at Kmart and there are only two lanes open do you surmise that people just must really love Kmart?

(Marc's solution -- just buy online!)

Seriously, though -- congrats to all the volunteers helping to ensure the vote is fair and accurate -- we all owe you a debt of gratitude.
Read more here: http://www.miamiherald.com/2012/10/28/3071749_early-vote-figures-dont-lie-but.html#storylink=addthis#storylink=cpy


Friday, October 26, 2012

11th Circuit Affirms Judge King in Checking Overdraft Arbitration Waiver!


Finally Judge King gets affirmed in a Checking Overdraft arbitration decision, this time in a situation where the bank did not move to compel arbitration until after the Supreme Court's Concepcion opinion:
The district court twice invited Wells Fargo to move to compel arbitration, first in November 2009 and again in April 2010, but Wells Fargo declined those invitations. A year later, Wells Fargo reversed course and moved to compel arbitration soon after the Supreme Court held in AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740, 1753 (2011), that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., preempts state laws that condition the enforceability of consumer arbitration agreements on the availability of classwide procedures. The district court denied the motion based on waiver. Wells Fargo argues that it did not waive its right to compel arbitration because it would have been futile to move to compel arbitration before the Supreme Court decided Concepcion. But we conclude that Concepcion established no new law. Because we conclude that it would not have been futile for Wells Fargo to argue that the Act preempts any state laws that purported to make the classwide arbitration provisions unenforceable, we affirm the denial of its motion to compel arbitration.
Oops!

Hopefully the decision to not seek arbitration was made by Wells Fargo's in house counsel.

BREAKING -- Leaked Footage From Inside This Morning's Attorney Breakfast Club!

As many of you know, this morning the Attorney Breakfast Club met at the Hotel Urbano for a spirited discussion and some day-old bagels (stop complaining, they're just as good the next day!).

Thanks to a tipster, we are able to bring you exclusive footage from one of the many distinguished speakers, please take a look at what you're missing:


(Hey, it's a slow news day.)

Thursday, October 25, 2012

SHOCKER Federalist Society Report: Embattled FL Supreme Court Justices Are Principled!



I'm more of an ACS kind of guy, but I do have to give the Federalist Society props for their own integrity in knocking down this ludicrous campaign to remove Justices Quince, Lewis, and Pariente:
A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.  Download Federalist Society

“There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,’’ wrote Florida International University law professor Elizabeth Price Foley after analyzing nine controversial cases since 2000. “There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled.”

Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.”  Opponents who want to accuse them of judicial activism, she said, are “going to have a hard time making that label stick.’’
Oh don't be so sure, Professor -- since when have facts stopped the Koch brothers?

PS --  The endorsements keep rolling in:


Developer's Suit Against Blogger Survives Motion To Dismiss!

We've been tracking this case brought by a wealthy developer against a local, formerly anonymous blogger over negative blog posts for a while, and now Judge King has authorized the suit to proceed:
In short, Defendant acknowledges using Plaintiff's copyrighted picture without Plaintiff's consent, but argues that she was not liable under copyright's fair use doctrine. The Court, being fully briefed on the matter, finds that Plaintiff has adequately stated a prima facie case of copyright infringement; on these facts and filings, Defendant's fair use defense is not appropriate for determination on a motion to dismiss. Accordingly, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be denied.
In other words, the fair use doctrine defense will have to be decided on summary judgment:
Here, Defendant alleges that her use of the Image was not for parody but for news reporting and commentary. (DE #14, p. 10). Though news reporting and commentary lend themselves to fair uses, see 17 U.S.C. sec. 107, such a determination is far from automatic and is more appropriately resolved after the complaint has been answered and parties have evaluated any need for discovery.
But if the Image and the posts in which it appears are in the complaint, what further discovery would be needed?

If they are not, perhaps put them in the answer and move for judgment on the pleadings?

Wednesday, October 24, 2012

3d DCA Watch -- Judge Salter Knows a Proper Lis Pendens When He Sees It!


Hi kids, the Robed Ones are busy getting the bunker ready for Judge Logue's investiture on Friday (making sure the bathroom sinks are tightly bolted to the walls, polishing the concrete furniture, that sort of thing), so the opinions are a bit sparse today.

Let's take a look:

Blue Star Palms v. LED Trust:

Here Judge Salter has to determine whether there is sufficient nexus between the plaintiff's claims against the defendants and condo units owned by them in order to uphold an order refusing to dissolve a lis pendens.

The first clue -- be careful in your captions:
While captions are not controlling, they occasionally provide a strong hint—here, for example, a hint that the action seeks money, not the imposition of a lien or injunction relating to specifically-identified condominium units.
The second clue:  it just doesn't feel like enough of a nexus:
Whatever a nexus with specific Florida real estate may be, this is not it.
This feels to me a little like Justice Potter Stewart -- "I know a nexus when I see it!"

Back to the drawing board, Moshe!

Warren Trazenfeld Explains How Not to Get Sued (By Warren Trazenfeld)!


Spencer's Attorney Breakfast Club may need to keep an extra supply of Maalox ("It's a Relief to Enjoy Life!") around as noted attorney malpractice expert Warren Trazenfeld gives everyone the willies as he explains how to avoid getting sued by your clients.

Here's my list:

1.  Never take on clients;
2.  Never put funds in or remove funds from a trust account;
3.  Never file anything (alternatively -- file everything); and
4.  Hide in closet until things blow over and/or the phone stops ringing.

Warren probably has a few more ideas so you may want to check out Friday's presentation.

Tuesday, October 23, 2012

Your Tuesday Morning Digital Dump!


So I know we're all politically engaged, what did you think of the debate?

Here's my takeaway:


And of course there's this:


Alright, enough politics.

I see my pal Paul Huck Jr. landed at Hunton:
Paul Huck Jr., the husband and son of judges, has joined Hunton & Williams as a partner in the Miami office.

Huck, a litigator, worked at Colson Hicks Eidson in Coral Gables for four years and served as general counsel to then-Governor Charlie Crist from 2007 to 2008.

Huck said he was looking to join a national law firm to expand his commercial litigation and attorney general investigation practice. He represents clients who are being investigated by the Florida attorney general’s office on civil matters.

“I was looking for a firm with a national footprint,” he said.
Note to managing partners -- this is how you gracefully handle a lawyer departure:
“Hunton & Williams is fortunate that he has joined,” Dean Colson, managing partner at Colson Hicks Eidson said in a statement Monday. “We know that Paul will continue to be very successful, and we wish him nothing but the best.”
Well done, Dean (and Paul)!

In other news, 11th Circuit appellate junkies will rejoice over a weird quirk that happens when en banc review is evenly divided -- the district court judgment is affirmed by operation of law, and the panel opinion is wiped out as if it never existed:
The decision of the district court is affirmed by an evenly divided court. The opinion of the panel remains vacated. United States v. Geders, 585 F.2d 1303, 1306 (5th Cir. 1978) (en banc) (“[T]he court en banc is evenly divided; therefore the judgment . . . of the district court is affirmed by operation of law.”); see id. (indicating that, if district court judgment is affirmed by operation of law, the panel opinion remains vacated); see also Reshard v. Britt, 839 F.2d 1499 (11th Cir. 1988); United States v. Sigma, Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc) (noting that when panel opinions are vacated they “are officially gone,” and “are void,” and none of the statements made in them “has any remaining force and cannot be considered to express the view of this Court.”).
Sorry panel, your opinion has been officially vaporized!

Monday, October 22, 2012

Archbishop Wenski Takes on Obamacare!


The Archdiocese of Miami and Archbishop Wenski have filed a lawsuit in Miami federal court challenging Obamacare's contraceptive care provisions:
"I am defending religious freedom for the Catholic Church and its many ministries," said Wenski in a news conference at the Pastoral Center in Miami Shores, hub for the Archdiocese of Miami. "The mandate jeopardizes our freedom to serve in a way congruent to our consciences and the moral teachings of our faith."
The case is pending before Judge Graham, and the Church is represented by Roberto Javier Diaz of J. Patrick Fitzgerald and Associates, P.A., in the Gables.

Patty Fitzgerald?

Great name for a case like this!



The complaint is a very interesting read too, including passages you don't normally see too often, such as this one:
Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic beliefs. Among those beliefs is the requirement to serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict recently put it, “love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006).
Wow, how do you bluebook the Pope?

(I guess if he says it is correct, you can probably stop there.)

Swlip, time to chime in!

Friday, October 19, 2012

Judge Jordan Goes Full Carnes!


We've written at length about Judge Carnes' predilection for a strong "cold opening" to his opinions, frequently drawing from history, literature, pop music, and even beloved children's stories.

Not to be outdone, Judge Jordan tries his hand with an always-in-style Abe Lincoln reference:
Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary.
Ok, not bad for a first try -- this one actually fits.

Roughly translated, I believe the Judge is saying:  "Ms. Harkins, you are no Abe Lincoln."

Thursday, October 18, 2012

Attention E-Discovery Nerds: Judge King Has Weighed In!


And by e-discovery nerds, I mean specifically John Barkett, who wrote a thoughtful piece not long ago for the DBR on whether electronic databases and the like can be taxed as costs under Section 1920(4) as the "exemplification of....materials."

In walks hotshot cyberwarrior Senior Judge King, to throw water on this exciting new way to make plaintiffs pay:
Moreover, it is the opinion of this Court that, as noted above, Congress's amendment of Section 1920(4) did not expand taxable costs beyond digital copying to the creation of new, modified, or enhanced digital files. A prevailing party may tax the costs of making digital copies, but Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable.'' Race Tires, 674 F.3d at 169. A holding to the contrary would be "untethered from the statutory mooring,'' id , and would muddy the distinction between taxable costs, which are generally available to the prevailing party, and attorneys fees, which generally are not available under absent a fee-shifting agreement or statute.
He even added some policy grounds!

John if you're reading this we'd be most appreciative of your insights on Judge King's opinion (we basically have none).

Wednesday, October 17, 2012

3d DCA Watch -- The One Where Judge Graham's Mistake Saves Fowler White!


BREAKING -- Alan Kluger has a huge line of credit and never has to use it:
Alan J. Kluger's 32-lawyer South Florida law firm falls into that category. Kluger, a founding partner of Kluger, Kaplan, Silverman, Katzen & Levine, said the firm has a sizable line of credit from its bank, Sabadell United Bank in Miami, that goes unused. "They gave us a really big line. We have not ever taken a penny on it," Kruger said, citing solid cash flow from operations.
Exactly!

Who needs a big line when you can just unload a spare Dutch Master?


Ok, let's do some butt bunker bingo!

(I have no idea what that means.)

So one of the Fowler Whites represented somebody in a maritime case, Judge Graham entered some orders, they were affirmed on appeal, then the Judge apparently changed his mind and the client somehow got damaged.

In a hold-your-noser, Chief Judge Wells says blame the judge, not your law firm:
In the instant matter, Hanson lost in federal court on remand not because of any tactical decisions on his lawyer’s part, but because the District Court inexplicably refused to rely upon a prior ruling on an issue that had been raised by the parties, tried by consent at a bench trial, and left untouched by the appellate court. Thus, in this case, no tactical decision and therefore no judgmental immunity are involved. That being said, we nonetheless find that the lawyer and his firm are entitled to a judgment in their favor as a matter of law.
But Judge Schwartz in dissent says an inexplicable legal ruling is not an intervening cause for a malpractice case:
In this case, in which, depending on how one likes to put it, the ultimate catastrophe has occurred or the worst case scenario has played itself out in the loss of an otherwise meritorious and valuable position, presents an a fortiori situation. For these reasons, I believe that the wrong party won this case.
(I admit I don't understand that sentence but I think it means the negligence claim should proceed.)

Spencer Aronfeld's Head Causes Vegas Fountain to Explode!

Well, I may be overstating causation just a bit, but there's certainly a correlation.

See for yourself:



(Actually, the timing on the "money shot" was perfect!)

Tuesday, October 16, 2012

Lewis Tein: The Rest of the (Alleged) Story.


I'm not sure why they waited so long to get their side of the story out on the table, but in both the state court proceedings and in federal court, Lewis Tein has moved for sanctions against the Miccosukee Tribe and their new counsel.

The state court 57.105 motion closely tracks the Rule 11 filing, and for those interested here is the Rule 11 reply filed yesterday.

This is the closing section:
The following four facts are relevant to considering the instant Rule 11 issue:
a. The Tribe maintains that its current chairman has no personal knowledge of the fraud allegations against Lewis Tein.
 

b. The Tribe's current vice-chairman testified that he knew of no facts supporting the Tribe's allegations of fraud against Lewis Tein.
 

c. In the Bermudez Case, the Tribe's attorney testified that he conducted no investigation to support the Tribe's accusations of fraud against Lewis Tein.
d. In the Florida RICO Case, the Tribe has refused to produce a single document or witness to support of its allegations of RICO and fraud against Lewis Tein.
The foregoing facts, combined with the absence of any evidence against Lewis Tein, establish that the Tribe's lawsuit was filed in bad faith and for improper purposes. Knowing there is no evidence, the Tribe and its lawyer continue to pursue this action.
They also have new counsel (artist's rendering below):


I'm sure everyone will be nice and respectful in comments.

Monday, October 15, 2012

"Bottle of Wine" Bankruptcy Sanctions Order Upheld!


Boy I remember the days when you could smooth over a dispute with a federal judge simply by delivering a nice bottle of wine and a hand-written note on the judge's doorstep.

Actually, I don't ever remember those days.

Regardless, the 11th has weighed in and affirmed the sanctions order:
Gleason has identified no authority supporting his contention that the First Amendment shields from sanctions an attorney who files an inappropriate and unprofessional pleading and then contacts a presiding judge ex parte with an offer to share a bottle of wine and “privately” resolve their dispute. When an attorney files inappropriate and unprofessional documents, a court may impose sanctions based on its “inherent power to oversee attorneys practicing before it.” Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir. 2002) (upholding a district court’s decision to sanction an attorney who submitted documents containing personal attacks on opposing counsel).

In the present case, the bankruptcy court found that Gleason’s written submissions to the court and sending a judge a bottle of wine with an offer to resolve their differences privately amounted to “sanctionable professional misconduct.”
Oh well,  I hope somebody drank it, a nice bottle of wine is a terrible thing to waste.

(Maybe it was part of the record on appeal?)

11th Circuit to Miccosukee Tribe: The Taxman Cometh!


It feels as if I've written about this case before, but today the 11th Circuit affirmed Judge Gold's refusal to quash IRS subpoenas to the tribe's banks and financial institutions.

Here's what Judge Pryor had to say about tribal immunity:
The claim to tribal sovereign immunity here fails for two reasons. First, the summonses are not suits against the Tribe. Second, tribal sovereign immunity cannot bar a suit by the United States.
The first point seems hypertechnical, but the second point really closes the door on the doctrine when you're dealing with the US government:
The Supreme Court has described tribal sovereign immunity as having passed to the United States to be held for the benefit of the tribes, much like the tribal lands. United States v. U.S. Fidelity & Guar. Co., 309 U.S. 506, 512, 60 S. Ct. 653, 656 (1940). Indian tribes may not rely on tribal sovereign immunity to bar a suit by a superior sovereign.
And we know what happened to the tribal lands.

Query if this decision will impact the ongoing dispute between the tribe and its former lawyers?

Friday, October 12, 2012

Your Friday Morning Digital Dump!



Hi there, that was some debate last night!

Anyone else notice how much water Paul Ryan drank?

He's obviously following the P90X nutritional plan to a tee:
In all of the phases eating frequent small meals and drinking lots of water are emphasized.
Where were the celery sticks?  (Biden probably would have chomped them right out of Ryan's hands.)

In other news, DBR reporter Deb Espana reports on law students doing good things:
A Guatemalan teenager who came to the United States with his parents when he was 11 is attending a magnet high school focusing on law studies and dreams of becoming a Drug Enforcement Administration agent.

He is a senior at the Law Enforcement Officers Memorial High School in Miami and seeking admission to West Point.

But because of his status as an undocumented immigrant, he has been unable to take any jobs and faces other limitations as a noncitizen.

To help children and young adults like him, Florida International University College of Law has joined forces with the law schools at the University of Miami and St. Thomas University to handle applications under a change in immigration policy by President Barack Obama. The Deferred Action for Childhood Arrivals program allows the deferral of removal for immigrant students and young adults.
Call me crazy, but don't you just love stories like this?

Meet the Herald's newest columnist, Florida Supreme Court Justice James E.C. Perry: 
Make no mistake. It’s not just about the Florida Supreme Court justices and appellate court judges on the ballot. It’s much bigger than that. The integrity of the entire judicial branch — and therefore, the overall balance of our state’s government — is in play.

Look at it this way: Will Florida Supreme Court Justices and appellate court judges in the future hesitate to make difficult decisions that they believe are required of them if their colleagues have been voted out of office for doing just that?

You be the judge.
Not bad, Your Honor -- and already a huge improvement on Garvin!

Finally, this guy is building a practice focusing exclusively on e-discovery: 
Teppler is now going where few other attorneys on the Gulf Coast are, by hyper-focusing his practice on a rare new section of the law: electronic discovery. The concentration isn’t only counterintuitive. It’s also timely, in that the Florida Supreme Court recently adopted seven new rules of civil procedure specific to electronic data discovery in state courts.

The rules are supposed to make the e-discovery process clearer, more specific and more efficient. The rules, which also spell out how judges can sanction attorneys in e-discovery matters, were adopted in July and went into effect Sept. 1.

The trick now is to ensure attorneys, and by extension, their clients, are fully aware of the changes. “There are some landmines (in e-discovery) that can trip up attorneys, to the detriment of clients,” Teppler says. “Attorneys know how to handle technology — kind of. But when it comes to litigation, they are at a disadvantage.”
Right, like I had to ask my kid last night how to change my default settings in iTunes.  He told me to stick my metadata where the sun don't shine.

The children really are our future!
 more here: http://www.miamiherald.com/2012/10/11/3045785_p2/in-florida-separation-of-powers.html#storylink=cpy

Thursday, October 11, 2012

"Your Honor, No Pro Se Plaintiff Can Write Like This"!


 What happens when a "pro se" plaintiff dazzles you with her legal acumen and drafting brilliance?

Why of course you cry foul and accuse the pro se scribe of having a secret Christopher Marlowe:
Defendants filed their Motion asserting that it is “manifestly apparent” that an “unknown attorney” is purporting to sign and file pleadings under pro se Plaintiff’s name. According to Defendants, this “unknown attorney” is acting in such a manner to avoid the attorney admission requirements of this Court. Defendants support their assertion by claiming that the number of Plaintiff’s filings “is typical of an established law firm” and that Plaintiff’s pleadings “assert sophisticated legal positions [and], cite legal precedent and Court rules in support of such positions,” and thus “reflect the work product of a trained legal professional, or someone working under the supervision of a trained legal professional (e.g. law student, paralegal or junior associate attorney).” D.E. 125 at 5. Defendants request that this Court dismiss Plaintiff’s Complaint on the basis of this so-called fraud.
So the "evidence" consists of quality legal writing and knowledge of legal precedent and Court rules?

Maybe somebody ought to offer this person a job!

Let's see what Judge Rosenbaum has to say:
The competent quality of a party’s pleadings is not a basis for striking them. Defendants have offered no evidence that indicates someone other than Plaintiff has been filing documents on his behalf, and except for the lone mention of a law firm during discovery, Defendants have offered no evidence that Plaintiff is even in contact with someone who is providing him with legal advice.  Nevertheless, assuming for the sake of argument that Plaintiff is receiving legal advice (which by itself violates no rule), no one but Plaintiff has entered an appearance in this Court on Plaintiff’s behalf. Therefore, Rule 4 of the Special Rules Governing the Admission and Practice of Attorneys of the Local Rules of this Court is inapplicable. And in any event, Rule 4 does not provide the basis for dismissing a complaint. At most, it creates an issue for the bar regulating the alleged covertly practicing attorney. There is certainly nothing here that requires, let alone permits, this Court to dismiss Plaintiff’s case based on Defendants’ respect for the quality of Plaintiff’s briefs.
This seems somewhat obvious, don't you think?

It'd be interesting to assert the opposite -- that the shoddy quality of opposing counsel's work clearly proves that it is being ghost-written by an untrained, unwashed nudnick.

That probably happens more often.

Wednesday, October 10, 2012

3d DCA Watch -- Hold Your Nose Time!


Ok, so a nice disabled widow in upstate New York got cold-called by a Lake Worth Ponzi outfit selling mostly non-existent "precious metals" and wound up handing over her a chunk of her retirement to these sleaze balls.

Don't you just love America?

After the Ponzi scheme collapsed, the creditors designated a specialist to liquidate the few actual assets of the company, including some precious metals much like those promised but never delivered to the poor widow.

Too bad so sad, says a sympathetic Judge Salter:
There is no bailment implied-in-fact in this case. Although Ms. O’Brien insists that the silver was set aside for her, there is no record evidence to support this contention. There is also no evidence that 1,000 ounces were purchased with her funds or segregated as her separate property. None of the bailment elements exist here.
The Judge concludes by lamenting one of Florida's most treasured and historic features -- con artists:
This fraudulent scheme apparently escaped, at least for a time, the attention of the federal and state authorities regulating commodities trading and the exploitation of consumers like Ms. O’Brien. Ponzi schemes seem to recur again and again in South Florida, sometimes involving diamonds, sometimes oil, and in this case, gold, palladium, and silver. The names of the scams seem to be endless permutations of “gold bullion,” “international,” “global,” “diversified,” and “precious.” The common denominator is that the commodities are imaginary, or are the undivided “property” of a host of victims, not any one of them. The circuit court properly authorized the sale of the silver by Mr. Stermer, and at this point Ms. O’Brien can only hope that the process of liquidation will yield some net recovery on her claim.
A classic "hold-your-noser," albeit much more eloquently expressed.

3d DCA Watch -- Special Tuesday Edition!


I know I know it's now Wednesday, but those sneaky coffee-swillers got together and decided to pull a fast one on us yesterday, knowing that nobody in their right mind pays any attention to the bunker except on hump day:

Sunbeam Television v. Clear Channel:

Hey, what do you know -- Judge Logue wrote an opinion!

BTW, his induction is set for October 26 at 3 p.m -- I'm sure everybody got the letter asking for sponsorships.  (I got naming rights to the broken Total Gym 3000!!)

Of course I kid -- we're actually happy about this choice and think he'll do a great job.

However, you can tell he's still new -- he didn't rule in favor of Laurie Waldman Ross.  How could that have happened?

Interesting legal issue, too -- how do you get appellate review on a motion to stay when the trial judge won't rule on the motion?

You apparently need to nudge the trial judge really hard:
Sunbeam asks us to rule on its stay request, based on the assertion that the stay request should be treated as denied because the trial court has not ruled on the request. Sunbeam asserts in the alternative that, because the trial court has yet to rule on its stay request, we should issue a writ of mandamus ordering the trial court to do so. We decline either alternative because the record reflects that Sunbeam still has avenues available to it to get this matter before the trial judge.1
Oh and here's footnote 1:
For example, Sunbeam could hire an actor to dress like Shakespeare and endlessly recite the motion out loud in an exaggerated acterly British accent during motion calendar.  Sunbeam could have Joe Matthews parachute over the courthouse and hand the judge a copy of the motion as he lands ever so gently on Judge Bailey's desk.  Sunbeam could surreptitiously rearrange the magnet letters on Judge Bailey's fridge to simply say "RULE NOW."
The third example brings up a terrific war story, though I've been enjoined from discussing it further until at least 2025.

Tuesday, October 9, 2012

Show Your Support Tonight for Justices Quince, Pariente, and Lewis!


Sorry to keep beating the drum about this issue, but when you read a report like this from the NYT it just ticks you off:
“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.”

Democrats say the campaign is really about giving Gov. Rick Scott, a Republican, the chance to appoint three new justices. The Florida Legislature also wants greater control of the judiciary — an effort that began last year with House Speaker Dean Cannon and is continuing with a proposed amendment on the ballot this year.

“All of this is an attempt to hijack the court,” said Dick Batchelor, a Democrat and former State House member who is working with Defend Justice From Politics, one of several counteroffensives. 
“This is all about raw politics. It has nothing to do with jurisprudence.”

Americans for Prosperity, an organization founded by the Koch brothers, recently joined in the battle and began broadcasting television advertisements in several cities highlighting the health care amendment ruling. The group also plans to highlight other cases. 
Tell the Koch brothers to take their toilet paper money elsewhere and leave our courts alone.

The big event is tonight from 5:30 to 7:00 at the downtown Intercontinental Miami, or you can contribute online: 

Monday, October 8, 2012

Rock Me Zachariah (Squared)!


Ok, so we're supposed to just blithely accept the fact that there are two people in Broward both named Zachariah Zachariah?

We've already covered the Broward doctor Zachariah Zachariah here.

And then there's this guy:
Governor Rick Scott has appointed two Fort Lauderdale attorneys to the Seventeenth Circuit Judicial Nominating Commission.

The commission reviews applications and recommends candidates for appointment to the bench on the circuit court that covers Broward County. Circuit judges are typically elected, but when vacancies arise due to death, retirement or resignation, it's the governor's job to fill the vacancy. The nominating commission sends the governor three to six names to consider.

The governor has the option of choosing from the recommended candidates or asking for additional recommendations.

The new appointees to the commission are William McCormick, of the Gray Robinson law firm, and Zachariah "Reggie" Zachariah, of the Greenberg Traurig firm. Both firms are headquartered in downtown Fort Lauderdale.
Maybe they are related?

Either way congrats to Reggie, a 2009 grad who is quickly moving up in the world.

And now we dance:





Friday, October 5, 2012

Your Friday Morning Digital Dump!



Hi there, it seems mighty quiet around here, let's see what there is to discuss in the District:

Ms. Intrepid reports that Jeremy Alters will be paying $600k to resolve one of his checking overdraft origination lawsuits:
Miami plaintiffs attorney Jeremy Alters has reached a $600,000 settlement in one of two cases brought by Argentinian law firms claiming they originated the theory behind a wide-ranging class action lawsuit on bank overdraft fees.

A similar case brought by Raponi & Hunter Abogados of Argentina is still pending, with Miami-Dade Circuit Judge Jennifer Bailey due to rule on a motion for summary judgment soon.
I found this part amusing:
Alters strongly denies he got the idea for the litigation strategy from the Raponi lawyers. He said they made an unrelated suggestion about a bank class action, but he got the idea for the overdraft case after finding three similar cases had been filed in California. He said he offered Raponi a 6 percent cut of his fees in February 2011, something he now calls "a mistake."
So there were three existing California cases, which gave you an "idea" to file a fourth?

Good idea!

Also, which part of the 6% offer was a mistake -- the offer, or the percentage (should have stuck with 5)?

The Miami Herald says vote NO on Amendment 5:
Amendment 5 would inject the Senate into the selection process of justices.

There’s no need to infuse more politics into a process that, despite some warts, has worked well the past 40 years after Florida voters gave the nod to the JNC process and retention elections for appellate judges. This ended decades of corruption at the highest levels.

The proposed amendment also would allow the Legislature to repeal a JNC rule or procedural court rules — say, deadlines for filing court documents or risk having a case tossed, or time limits to ensure a constitutional requirement for a “speedy trial” — by a simple majority vote.

Right now, such rules can be changed by the Legislature only by a two-thirds vote, thus ensuring a check but also a balance on the powers of each branch of government.

Amendment 5 simply is a political power play by Tallahassee pols backed by special interests attempting to change the balance of power. The Miami Herald recommends: Vote No.
Hey, not bad for the Herald.

Scott Rothstein and the worst product placement ever:
The uncle said he had no idea there was trouble brewing when he boarded the flight with Rothstein and a Boca Raton restaurant manager who Rothstein was bringing along as a translator.

When they landed in Casablanca, the three went to check into a luxury hotel with Rothstein asking his uncle to put the tab on Boockvor's credit card. The total hotel bill for their stay would end up being about $30,000, Boockvor said in a June deposition.

They dined at McDonald's that first night, then spent the next two days looking at apartments and houses for rent, Boockvor said. He came to believe that Rothstein was considering buying a nightclub, he said.

"Day Three is when all hell broke loose," Boockvor said.
Exactly -- we call that the "Mickey D Effect" (though it usually doesn't take three days).


Read more here: http://www.miamiherald.com/2012/10/03/3032796/dont-tread-on-judiciary.html#storylink=cpy

Thursday, October 4, 2012

Judge Huck Wrote an 11th Circuit Opinion!


Don't get so excited, it's a pretty dry legal issue involving an appeal from the NRBQ NLRB:
In light of this uncontradicted testimony, the language of Lakeland’s employee handbook, the LPNs’ job description, and the level two coaching forms in the record, the record as a whole does not support by substantial evidence the Board’s conclusion that the LPNs’ role in the level two coaching process is “merely reportorial.”
I take it back -- we're talking level two coaching forms!

Wednesday, October 3, 2012

3d DCA Watch -- Welcome, New Lawyers!


It's a festive time inside the bunker and the Resplendently Robed Ones have pulled out all the stops (i.e., they briefly fixed the coffee maker) to welcome a new class of Florida attorneys:
On October 3, 2012, the Court will hold Induction Ceremonies to swear in the newly admitted inductees to the Florida Bar. The induction ceremonies will be at 10:30 a.m. and 2:00 p.m. All inductees, their families and friends are invited to attend.
Congratulations!!

Now that you've just been sworn in, did you know some lawyers want you to be regulated by the Florida Legislature -- and we know how good a job they always do:
It may be time to review the status of the Florida Bar, which is only subject to the supervision of the Florida Supreme Court Justices.

Why should lawyers be the only profession exempt from legislative oversight; that is, from the oversight of the people of Florida?
I thought conservatives want LESS regulation of business?

Sorry kids, too late to go back to law school.

Let's press on to the business of pressing business:

City of Miami v. Fraternal Order of Police:

Judge Cynamon's temporary injunction enjoining the City Manager from invoking a "financial emergency" overturned.

Back to the bargaining table!  (Good luck.)

Here's an interesting one -- Judge Shepherd on the limited nature of appellate review:
The jurisdiction of the courts of this state is an intricate design arising out of provisions of the state constitution, statutes, and rules of procedure. We are not authorized to cut corners on that design.
Hey, weren't we (and the Florida Supreme Court) just talking about this?

Murphy v. Murphy:

Judges Schwartz and Rothenberg disagree on what constitutes a "supportive relationship."

I don't know about you, but I'm pretty sure this qualifies.

Now go get a job, plebes!






Read more here: http://www.miamiherald.com/2012/10/02/3031333/unfair-exemption.html#storylink=cpy

Tuesday, October 2, 2012

Did You Know a Few Billionaires Want to Rejigger the Florida Supreme Court?


 If you're in the legal biz it's impossible to not be aware of the Koch brothers' campaign to unseat Justices Lewis, Pariente, and Quince. 

But there's also this bugaboo up for a vote in November:
The GOP-led Florida Legislature also put a state constitutional amendment on the ballot that experts say would politicize the Florida Supreme Court.

Amendment 5 would change the Florida Constitution to say that the Florida Senate has to confirm state Supreme Court nominees. If passed, it would also allow the Florida Legislature to repeal any court decision with only a majority, which is 50 percent plus one. Right now, the legislature needs a supermajority.
Oy veh, do you think Florida would have integrated the public school system if the Legislature could have repealed that ruling with a 50 percent plus one vote?

A few newspapers have also weighed in:
"The three Supreme Court justices up for review are under attack by a conservative political action committee which declines requests for interviews...
That is the kind of politics that merit retention was designed to keep away.
For that reason, we strongly recommend voting "yes'' to retain Justices R. Fred Lewis, Barbara Pariente and Peggy Quince — all of whom passed muster in a Florida Bar poll with approval ratings of at least 89 percent."

Naples Daily News, 9/26/12

"The three Florida justices are certainly competent. A poll of Florida Bar members showed that 92 percent supported retaining Mr. Lewis, 89 percent Ms. Pariente and 90 percent Ms. Quince. And there’s no question of ethical impropriety.
Rather, it’s pure politics.
Let’s hope voters understand what’s at stake here. Let’s hope they vote to retain the three Supreme Court justices.”

Tallahassee Democrat, 09/25/12
Where did all the Jeb Bush Republicans go?

(I'm excluding Raoul Cantero's leadership on this issue -- major props to the guy for taking this on!)

Monday, October 1, 2012

Dear Eleventh Circuit: Excuse Me?


Hey, somebody better take the 11th up to a higher authority, I don't like the tone in this reversal and remand too much:
Given the district court’s misunderstanding of the burdens in this case, and given that Chaban himself seems to have admitted at trial that Goldstein was entitled to some amount of credit for surrendering his interest in the Chalsi, we believe the best course is to remand for the district court to have an opportunity to reconsider its factual conclusions on this issue under the proper legal standards and then recalculate damages.
In other news, yes the "higher authority" is in session today and a new documentary out by the Alliance for Justice says they are literally open for business:
 “Today, as the Supreme Court begins a new term, the court will be ‘open for business,” said AFJ President Nan Aron.  “The term is already packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice  The Court’s decisions this term could have harmful consequences for the ability of consumers, victims of discrimination, and others to get a fair day in court. 
“But no one should be surprised,” Aron said.  “What we are likely to see in the term that begins today was decades in the making.”
In other words -- blame Nixon.


(More here on the "1% Court.")