Wednesday, May 29, 2013

3d DCA Watch -- Judicial Wheelspinning Time!



If you are reading this, then you are already guilty of spinning your wheels this morning.

But you know who else is also guilty, of even more egregious "judicial wheelspinning"? -- yes, our treasured bunker inhabitants.

Read on.

Motors v. Miami Medley:

So are the Kozel factors -- which must be applied when sanctioning counsel or parties -- to be articulated and set forth in any sanctions order, or are they completely superfluous when everybody really knows what happened, wink wink:
Contrary to the position taken by Miami Medley, the order granting the motion for sanctions for defendant’s failure to attend mediation contains no acknowledgment, discussion or analysis of any of the Kozel factors. The order states merely that the motion is granted because defendants failed to appear at a duly scheduled mediation, of which defendants’ counsel was given notice. When presented with defendants’ sworn motion, alleging that the failure to attend mediation was the fault of the attorney and that the client was never made aware mediation had been ordered and scheduled, the trial court grossly abused its discretion in denying the motion to set aside the default without considering whether the default was improvidently granted and without addressing the Kozel factors.
Come on! -- sayeth Judge Schwartz in dissent, don't waste my time with these bright-line rules, they just cloud the swift imposition of justice (I'm paraphrasing):
Returning the case to the court below for the purely formulaic purpose of expressing in writing what we already know to be true is no more than judicial “wheel spinning” which we should avoid, not encourage.
But shouldn't we encourage the straightforward application of the law?  Is there no jurisprudential purpose served by requiring trial judges to set forth in writing the Kozel factors?

Can the exception for "what we already know to be true" be fairly applied?

Oh well, let's all get back to our timewasters.

7 comments:

Anonymous said...

Go to spencer's starbucks on Miracle mile and order "the spencer": Nine shots of espresso and fourteen packets of sugar.

Or go mellow with the "Aronfeld" a skinny vanilla latte with two splendas served strictly at a few degrees above room temperature to avoid burns, in a cardboard cup to avoid cuts from glass breakage, with a spill proof -sip proof lid to prevent sipping while driving which as everyone knows is distracted driving which leads to instant death and even worse, made and delivered by a barrista wearing surgical gloves, bathed in a constant glow of bacteria killing UV light, to ensure the safest, most disinfected drink on the market.

Personally, I like the Spencer- buzz buzz buzz.

Anonymous said...

Isn't this another case of an appeal that could have been avoided if the prevailing party below had done some rudimentary research and submitted a proposed order containing appropriate Kozel findings? Sadly, the trial judge has been on the circuit civil bench forever and should have known better.

Anonymous said...

Subtle but devastating commentary SFL.

RFB said...

Rump, what I didn't know, until just this minute, is that it was Barzini all along.

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Anonymous said...

The only "judicial wheelspinning" is Schwartz' efforts to avoid Supreme Court decisions and thumb his nose at a court he despises. Why does he continue to sit eight years after "retirement" when his precious time is being wasted in actually applying controlling law?

Juan Ramirez, Jr. said...

Kozel has saved many a maloractice lawsuit.
As to wasting time, why not pick up the phone and call opposing counsel? When they did not show up for the mediation, did anyone call?
All you need to do is show that the client knows what's happening.
How about wasting money? How much in costs and attorney's fees went into this?