Thursday, January 31, 2013

New Lawyer Advertising Rules Approved!

As if things were not confused enough, the Florida Supreme Court has approved new lawyer advertising rules that have been in the works for a long time, with two modifications, and over the dissents of Justices Parienti and Canady.

Here's a taste of the majority opinion:
Next, we address a concern expressed by commenters regarding the proposed requirement in new rules 4-7.13 and 4-7.14 that certain statements made in attorney advertisements must be “objectively verifiable.” Commenters assert that this requirement is unclear. We disagree. If the attorney can show, by objective facts, that the statement is true, then he has presented an objectively verifiable statement in the advertisement. On the other hand, making a subjective statement such as “the best trial lawyer in Florida” is a misleading statement that fails to meet the requirement because it is neither objective nor verifiable. The advertising statement must be supported by verifiable facts.
So now you need to assign an associate at your law firm to figure out what this all means and how this applies to your website.

Justice Pariente's dissent makes the distinction between traditional lawyer advertising and lawyer websites:
In my view, the potential harms and dangers presented by traditional advertising require closer oversight, whereas the inclusion of lawyers’ websites and information upon request as part of the lawyer advertising restrictions is unnecessary and has the potential to result in a chilling effect. For these reasons, I would exempt websites and information upon request from advertising restrictions, and I question whether the entire revamped approach to regulating traditional forms of advertising is a beneficial change.
 . . . .
In contrast to the surveys about the effects on the public of traditional lawyer advertising, there is absolutely no evidence that lawyers’ websites have contributed to the decline in the way the public views lawyers—or been the subject of abuse by the thousands of lawyers who utilize websites. It is clear from the date of these surveys that websites were not considered. Rather, a well-done and comprehensive website could give a potential client an abundance of meaningful information from which to make a decision as to that particular lawyer or law firm.
Or a good press release!

Wednesday, January 30, 2013

Speaking of Lewis Tein...

Does anyone know what the record is for Magistrate Judge recusals in a single case?

We have to be getting close.

So far Judges Turnoff, Torres, Simonton, and O'Sullivan have all recused.

Will Judge McAliley keep it?

(No civil opinions so no 3d DCA Watch today).

The Nevin Shapiro/Shook Hardy Complaint!

John Pacenti provides the background, and you can read all the allegations (key word: allegations) here.

The cloak-and-dagger "Supervising Attorney" (paragraph 10) and "Partner" (paragraph 11) descriptions are interesting.

SHB's answer is here.

Tuesday, January 29, 2013

Lewis Tein State Court Motion for Discovery!

Today is a scheduled hearing in state court regarding discovery sought by Lewis Tein against the Miccosukee Tribe and the plaintiff's lawyers.

The topic of the discovery?

Alleged collusion between the Tribe and the Bermudez plaintiff's lawyers to concoct "sham" allegations against Lewis Tein.

It's an aggressive motion, to the say the least, and you can read the whole thing here.

Monday, January 28, 2013

Judge King Romances the Stone!

Judge King recently completed a bench trial in a fascinating case involving the discovery of priceless emeralds on the ocean floor off the coast of Key West.

Well, either that or the whole thing was possibly concocted:
When all is said and done, there are two options: Jay and Steve legitimately found lost stones on the floor of the Gulf, or Jay and Steve placed stones acquired elsewhere on the ocean floor in order to "find'' them and thereby establish an ancient provenance and greatly enhance the value of the stones and the reputation of the men as treasure salvors. There is just as much support for the theory that Jay and Steve planted the stones as there is for the assertion that they found them . The Court cannot simply accept the un-contradicted testimony of Jay and Steve that they followed a treasure map to the site, dove to the floor, and found the emeralds. Each story represents one possible interpretation of entirely circumstantial evidence, and neither persuades the Court. Even if the Court could determine that Jay and Steve did indeed find the stones on the first day, the Court has no credible evidence upon which to base a finding that the material was lost or abandoned by some other original "finder'' or owner.
Moral of the story:  If it wasn't "lost" in a marine peril, then the law of salvage does not apply.

BTW -- I like the novel use of first names though would have modified it slightly ("Jay and Silent Steve").

Friday, January 25, 2013

Judge Seitz Opines on The Hangover and Get Him to the Greek!

It's not often the above combination of words appear together, but in this order Judge Seitz discusses The Hangover, Get Him to the Greek, and even throws in a little Sex and the City for good measure (seriously, what plaintiff would come forward and admit to buying that last title?).

Hilarie Bass gets the scalp for this one.

Thursday, January 24, 2013

Florida Supreme Court Reverses Judge Shepherd and Reinstates Tire Kingdom Class Action!

 Big win for talented appellate specialist Steve Rosenthal:
We have for review Tire Kingdom, Inc. v. Dishkin, et al., 81 So. 3d 437 (Fla. 3d DCA 2011), which is in express and direct conflict with this Court’s decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). We quash the decision of the Third District Court of Appeal in Dishkin with instructions to remand to the Circuit Court of the Eleventh Judicial Circuit of Florida for further proceedings consistent with this Court’s decision in Sosa.
Justice Canady, true to form, had a six-page dissent saying Wal-Mart changed everything (and not just on finding decent salmon or buying big screen TVs).

3d DCA Watch -- Dissents du Jour!

Hi kids, the bunker was lively with disagreements -- no, not over whether to replace the ancient medicine ball currently serving as a paperweight in the mechanical room with one recently "donated" by 24 Hour Fitness -- but with actual, honest-to-goodness legal disagreements, to wit:

D'Agastino v. City of Miami:

Is the Civilian Investigative Panel preempted by state statute and thus barred from investigating police misconduct?

Judge Shepherd says an apodicticly emphatic "NO" -- Judge Rothenberg says "YES" plus there's a conflict and the opinion should be certified to the Supremes.

Aventura Management v. Spiaggia Ocean:

This case concerns whether a condo association loses its lien on assessments by taking interim title to the property.

Judge Cortinas say yes, but Judge Shepherd says it is a conundrum, wrapped in an enigma, surrounded by a riddle, enveloped in a mystery, swallowed by a puzzlement.

Extra credit:  Rules 1.530 and 1.540 are different -- explain!

Wednesday, January 23, 2013

Lewis Tein Files Motion to Compel!

Lewis Tein has filed a motion to compel in the federal RICO case brought by the Miccosukee Tribe.

In a no-holds bar filing, the law firm makes a strong case:
If there is a single piece of paper -- generated by or in the possession of the Tribe prior to preparing the instant Complaint – that supports the Tribe’s outrageous accusations against Lewis Tein, the Tribe has yet to produce it. If one exists, Lewis Tein is entitled to it. If it is privileged, the Tribe must log it. And if no such documents exist, the Tribe should say so, instead of hiding behind objections and evasive language.
If it does not fit....oops, wrong locution.

Actually, I like the simple, declarative sentence structure.

(BTW, the new Mag on the case is Judge Torres.)

Tuesday, January 22, 2013

11th Circuit Reverses Judge King for Misinterpreting Iqbal!

Welcome back, plebes!

And thanks to the murderer's row of guest posts the last few days -- I've always depended on the kindness of strangers....

The capacity of Iqbal to wreak havoc in the district courts has long been a bugaboo of this blawg.

In an unpublished opinion, the 11th Circuit has reversed Judge King for dismissing a complaint with prejudice because he found the allegations mere "legal conclusions" entitled to no weight under Iqbal's vague, contour-less pleading standard:
 Lenbro contends the district court erred in refusing to consider the allegations in the Amended Complaint as to the parties’ state of mind on the basis that such allegations were “conclusory” and therefore not entitled to a presumption of truth. Following the Supreme Court’s approach in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), the Eleventh Circuit has suggested that, when considering a motion to dismiss, courts: “(1) eliminate any allegations in the complaint that are merely legal conclusions; and (2) where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quotations omitted). Allegations entitled to no assumption of truth include “[l]egal conclusions without adequate factual support” or “[f]ormulaic recitations of the elements of a claim.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).

In its Amended Complaint, Lenbro alleged it “insisted that Simon Falic personally guarantee to pay the consulting fees provided for in those agreements and made clear that it would not enter into the Consulting Agreements without such a personal guarantee from Mr. Falic.” This allegation as to the parties’ intent is not a mere legal conclusion, nor is it a formulaic recitation of the elements of a claim. Instead, this allegation is factual, providing support for Lenbro’s contention that the Personal Guaranty and Consulting Agreements were inseparable parts of the same transaction. Therefore, the district court erred in determining these allegations were conclusory, and the allegations should be entitled to a presumption of truth for the purposes of a motion to dismiss.
Well that clears up everything, doesn't it?

Monday, January 21, 2013

Beyond Vietnam: A Time To Break the Silence

Cross out "Vietnam" and add the "Middle East" ~ this speech is just as relevant today as it was in 1967.

Sunday, January 20, 2013

The One Constant

Stan Musial and Earl Weaver died this weekend.

UPDATE: Ron Fraser, "the Wizard of College baseball," also passed. He made Hurricanes Baseball a powerhouse and it has remained so. He delivered two national championships and amassed a 1,271-438-9 in 29 seasons as coach. He was a class act.

Stan the Man was selected to the All Star Team 24 times, tied only with Willie Mays. He had 3,630 hits. In Major League Baseball. It still sends chills up my spine, but he had exactly the same number of hits on the road as he did at home. 1815. That's the mathematical equivalent of winning the lottery in every state. In your twenties. Twice.

Earl Weaver never made it to the Bigs as a player, but was one of the most successful managers of the modern era. He had passion, purpose and was a showman. I recall watching baseball with my Dad when I was 8, 9 and 10 and Earl would get kicked out often for arguing. 91 times, although some say it was 98. Either way, its a record that will stand forever. My Dad loved Earl. Me too.

Friday, January 18, 2013

Friday Roundup

I miss SFL too, so stay off my case.

John Pacenti reports on the acquittal of Muslim cleric Izhar Khan. Kudos to Marshall Dore Louis and Joe Rosenbaum.

Greenberg Traurig enjoyed the dismissal of a malpractice lawsuit against it. A divided New York State Appellate court dismissed charges that a GT partner forged a document in a lawsuit. "The court held a "new cause of action for fraud does not accrue each time a plaintiff discovers new elements of fraud in a transaction or new evidence to prove such fraud," the opinion from the Appellate Division, First Department, said. I'm not sure that a victory predicated on the other side's failure to know all the fraud from the get-go merits a spike-the-ball celebration, but a win is a win.

Rumpole covers the Bunker's latest to Judge Hirsch (methinks there is a back story to the Judge Rothenberg and Judge Hirsch relationship.)

Enjoy your long weekend in observance of Dr. King's Birthday. Get a massage, enjoy a beer, and as my mother always cautions, don't take any wooden nickels.

N.B. Spenser is a tough act to follow, as affirmed by the many supportive comments to his post. Anyhoo, fortunately there is a lot going on so I don't have to just talk about myself, over and over and over again. The Spencemeister would be wise to accept Horace's offer to serve as Spence's agent and pitch a reality show for Spence. The possibilities are endless.

Thursday, January 17, 2013


I was flattered when the “anonymous talent” at the South Florida Lawyers Blog approached me about guest blogging.   Initially, an interview was suggested, but that became too cumbersome.  It was feared that I might inadvertently reveal too much about myself and in the process learn Blog’s editor’s secret identity.

Since I have been practicing law in relative absurdity, I mean obscurity, for the last 21 years; I would like to thank SFLB for finally giving me an opportunity to get my name out there.   I am aware that this Blog is tailored for a particularly smart, curious and socially aware legal audience.  I too appreciate its daily thought provoking posts.  Its unbiased journalistic approach is rarely found in today’s liberal mainstream media. 

My assignment was to write about myself, explaining why I do what I do – helping real people with real problems.  I am not sure how the last 20 years of practicing law have passed by so quickly.  The hundreds of translated plaintiff depositions, special set hearings, impassed mediations and client phone calls are all a blur.   But from the very beginning, even when in law school at the University of Miami, the idea of being a lawyer never seemed like it was really a job. 

I never accepted a case based on how much money I would make, how long it would take or cost.  I think that explains a number of my cases which have defied traditional logic.  I take cases when I believe that an injustice has been committed.   Sometimes juries agreed with me and sometimes they did not. 
I started my own practice right out of law school. I did not have the benefit of the training or the supervision that many lawyers receive through traditional employment as an associate.  In my early career, many of the cases I took were those that other lawyers did not want.  It was not uncommon for me to take a case that had already been rejected by several lawyers. 

If I liked and believed the client, I found a way to help them.  If I got paid that was the bonus.  Until very recently, I never considered owning my law firm or being a lawyer was a business.   This misconception has at times caused enormous pressure on my staff, family and me.

At 47 years of age, my view of the practice and business of law has matured and evolved.  I now try to make decisions more with my head and not just my heart.  As my case load has become more complex, I have begun co-counseling more cases.  Currently, I am working on pharmaceutical and medical device mass torts.   By associating with other lawyers and law firms, I am able to collaborate in new ways that were impossible as a sole practitioner.

Practicing law has given me the opportunity to give back to our community by helping not just my clients, but others who are in need.  I am very proud to have founded Lawyers to theRescue. It allows lawyers to do the kind of pro bono work that the reality of today’s legal climate makes virtually impracticable.  The Board of Directors is comprised of an impressive roster of South Florida lawyers- Scott Kotler, Jessica Laleh, Marco Britt and Santiago Cueto. 

After the earthquake in Haiti, I saw how passionately Doctors Without Borders responded.  I wanted to create a similar opportunity for lawyers to help those in need.  I did not have to look farther than South Florida’s homeless community.

Lawyers to the Rescue joint-ventured with Camillus House and opened an onsite legal aid office providing free assistance to the homeless.   In addition to its monthly free legal clinic, it sponsors a monthly lecture series called HEART-Homeless Education Advocacy Resource Training.   The seminars are held at Camillus House and open to the public.  Our presentations focus on sealing criminal records, immigration, disability, employment, child support and family law.  

In addition, Lawyers to the Rescue provides public service ex-tern credits to students at both Florida International College of Law and Miami-Dade Community College.  We do this to mentor and motivate future lawyers.   Lawyers to the Rescue hopes that its work will help change the public’s negative perception of lawyers.  I urge anyone who shares in the spirit of public service to join us at our next event.

Thank you SFLB for your loyalty, support and for showcasing my efforts.  Let’s have sushi some time soon.  I know a good place.

"I don't want to be happy, I just want to change the world" ~ Aaron Swartz

How can you tell whether you are losing your touch or have simply stopped giving a crap? Is it the slow march of time or maybe I'm just longing for the days when the word "conservative" wasn't an antonym for "intellectual"? Maybe I'm just bummed out that a guy like this chose to take his own life rather than put up with the bullshit we've all grown so accustomed to.

Aaron Swartz was a true wonder-kid that grew up to be humanitarian. After helping invent the web backbone known as RSS "Really Simple Sharing" while most teens are still in high school, he made a lot of money working with Reddit and decided to use his gifts and money to do some good. He was a champion of the open access movement and that was the motivation behind his "crime" which he likened to "checking too many books out of the library at a time". The law describes it differently and, from the 35 years in prison Aaron was facing, considered it a crime worse than helping Al Qaeda design a nuclear weapon.

Sure, he 'violated intellectual property rights' of the corporation that blah, blah, blah. Tell me what part of human knowledge isn't derivative? But he didn't access anything that he didn't have authority to access and that's why the prosecution's case amounts to one big breach in the 'terms of service' agreement he signed by clicking that ubiquitous "Accept" button we all move through blindly these days.

If anything this should have been a civil matter between MIT and Aaron. We need our best and brightest out solving problems and creating industry, not rotting behind bars. Reason and justice should have prevailed but they were nowhere to be found. His attorney Elliot Petters described it like this, “There was such rigidity with the people we were dealing with. I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio."

It was almost like the government was out to get him. It's not like he ever got in their way or anything. But in a world where bankers can commit any crime, where torture advocates get cushy jobs at Berkeley, and the best and the brightest are ground down to Soylent Green, I've got to tell you that we live in a land where justice is a game.

Larry McGuinness Suing Spurs Over Resting Star Players!

Oh boy:
He paid to see stars, not subs.

Miami lawyer Larry McGuinness is suing the San Antonio Spurs for withholding top players in a Nov. 29 game against the Miami Heat in Miami, ESPN reports.

McGuinness' class action claims he paid a premium price for tickets to see the high-profile visiting team and its well-known nucleus of Tim Duncan, Tony Parker and Manu Ginobili (plus Danny Green), but that the players' secretly planned absence was deceptive and violated fair trade law.

"It was like going to Morton's Steakhouse and paying $63 for porterhouse and they bring out cube steak," McGuinness told the sports network.
Now listen:  some suits that seem stupid (like the Hot Coffee thing) are actually not stupid at all.

But  I don't know about this one (despite the charity angle) -- it may be a case of first impressions.

Wednesday, January 16, 2013

3d DCA Watch -- Nothing Happened Today.

It's rare we see a week with no civil opinions, but like a good Skunk Ape sighting these things do happen in Florida from time to time.

Feel free to shoot me any tips if anyone has anything interesting to report.

Tuesday, January 15, 2013

$250 an Hour to Mediate a Federal Case? HAHAHAHAHA!

That's the problem Judge Scola encountered after the court-appointed mediator balked at the hourly rate:
The Defendant relays that the court-appointed mediator has refused to accept the hourly rate of $250 set by Administrative Order 2008-08, instead demanding to paid at $400 per hour.  As such, Defendant would like the Court to order the Clerk to appoint a different mediator.
Hey, it's government work -- $250 an hour ain't bad!

But the mediation must go on:
This Motion [ECF No. 23] is GRANTED. The Clerk is directed to strike Patrick C. Massa of Matrix Mediation as mediator in this case for failure to follow this District’s Administrative Order 2008-08. The Clerk shall also appoint a new mediator forthwith.
I don't know, if I was selected as a court-appointed mediator, I'd rather do this one job for less than have the Court order me removed for failing to agree to the specified government rate.

Monday, January 14, 2013

BigLaw -- Is There a Woman Problem?

 The Intrepid One™ does the heavy lifting here.
Increasingly, women, frustrated by unequal pay and opportunity for partnership, are leaving Big Law, taking their chances with smaller firms or by going solo.

Women have been grappling with the challenge of succeeding at law firms for decades. While many firms have taken steps to address women's concerns about balancing their work with parenthood by offering flex-time, the conversation now appears to have shifted to money — equal pay, equity partnerships and training to develop that crucial book of business.
Increasingly, the focus is on whether big firms have women on key executive and compensation committees and why there are so few female managing partners.

At a recent international law conference in Miami Beach, a panel of top managing partners, all male, conceded law firms are not doing enough to promote and retain female lawyers. While the law firm leaders noted they offer flex-time to women, two female lawyers in the audience raised their hands and declared they are more concerned with other issues these days.
"It's all about money and business development," said Peggy Kubicz-Hall of Minneapolis-based Greene Espel. "You have to think about who the second is on your project. Ultimately, it's a business, and for women to get ahead they have to have clients."

Of particular concern to many women, including members of the Florida Association for Women Lawyers, are several recent studies showing female lawyers are earning less and making partner at lower rates than their male counterparts, both in Florida and nationally.
What say you big-firmers?

Can anyone dispute that the challenges, opportunities and -- yes -- pay -- are different than for male counterparts?

That doesn't mean you can't succeed and succeed big inside a big firm, but it's hard to argue everything is exactly 100% equal.

In other news, the Lewis Tein/Miccosukee Tribal case returns to the 3d DCA on the plaintiffs' emergency petition to stop an evidentiary hearing so the plaintiffs can get more discovery or expand the scope of the hearing (or something like that).

As always, judge for yourself.

Friday, January 11, 2013

In 1985 I Used to File Notices of Unavailability When I Went on Vacation -- So Now There's a Problem?

I remember the days when my senior partners were getting ready to go to Europe and I had to make sure we had properly filed "notices of unavailability" in each and every case in the office, alerting unsuspecting judges that Italy is just lovely this time of year and therefore don't enter any orders until at least three days after the senior lawyer on the file gets back from Milan.

But I used to wear parachute pants back then and Hardcastle and McCormick was my favorite TV show (I hated Thirtysomething).

Indeed, as Judge Scola reminds us, those days are long gone:
THIS MATTER is before the Court following Plaintiff counsel’s filing of a “Notice of Vacation and/or Unavailability” [ECF No. 22]. Counsel asks that “no hearings or depositions be scheduled” while he is out of the country and that “no motions, request to produce, interrogatories, or other pleadings to be filed which require a timely response during this time; and that all pending matters remain in status quo, during this time period.” Not. at 1. Counsel then unilaterally declares that “[t]he filing and service of this Notice shall constitute an application and request for continuance, extension of time and/or protective order as appropriately required for the above reasons.” Id.

This will not do. This type of filing is not authorized by the Federal Rules of Civil Procedure or this District’s Local Rules. It is unreasonable to expect this Court to sua sponte issue continuances and extensions of time whenever a “Notice of Unavailability” is filed in a case. The Court is unwilling and unable, practically speaking, to keep tabs on the scheduling needs and travel plans of every lawyer appearing before it. Counsel is best positioned to know whether or not any case deadline actually conflicts with his vacation schedule. If it does, counsel should confer with the other side and then, if necessary, file a proper motion seeking a continuance, extension of time, or other relief. If this procedure is followed, the Court will make every effort to accommodate reasonable requests to continue and/or for additional time. The Court is confident that opposing counsel will likewise extend reasonable professional courtesy in such matters, consistent with the professional and ethical standards that guide all members of this profession.
Thus, for the reasons explained above, the Court hereby STRIKES counsel’s “Notice of Vacation and/or Unavailability” [ECF No. 22], as ineffective and unauthorized by the Federal Rules of Civil Procedure and this District’s Local Rules.

Thursday, January 10, 2013

Spencer Aronfeld -- Now With More Facial Hair!

I'm sure what Spencer is saying here is important and very helpful, but I couldn't get past the new George Clooney-like facial hair -- hey, didn't we already miss Movember?

You could have helped cure testicular cancer with that thing!

Wednesday, January 9, 2013

3d DCA Watch -- Appellate Deadlines Matter.

We interrupt your regularly scheduled afternoon internet porn activity to bring you this important message from deep inside the bowels of the bunker (the bunker's bowels?):

Notices of appeal are jurisdictional.

In other words, you have to file the darn things on time.
The order appealed was rendered on July 31, 2012, and the notice of appeal was filed on August 31, 2012. “A timely notice of appeal must be filed within 30 days in order for this court to have jurisdiction; late filing is a defect no one can correct, not even the court.” Hawks v. Walker, 409 So. 2d 524, 525 (Fla. 5th DCA 1982); see also State of Fla., Dep’t of Highway Safety & Motor Vehicles v. Joannou, 353 So. 2d 164 (Fla. 3d DCA 1977). Accordingly, the appeal is dismissed.
You may now return to seeing what your high school girlfriend's kids look like when they all went on that holiday cruise, and one of them posed with a parrot (so cute!).

Attention, Judicial Applicants: Can You Make a Nice Bowl of Pasta?

Just curious is all.

In all seriousness, what a great pick and very well-deserved!

(h/t The Captain)

Tuesday, January 8, 2013

Judge Ryskamp's 1927 Sanctions By Default Upheld by 11th Circuit!

After granting summary judgment on a discriminatory housing claim against the city of Jupiter, the city sought fees under both sections 1988 and 1927.  Judge Ryskamp allocated $82k in sanctions under section 1927 against both the plaintiff and its attorneys.

The 11th Circuit upheld in an unpublished decision, with visiting MD FL Judge Whittemore dissenting:
After receiving notice of what conduct was alleged to be vexatious, in bad faith, and multiplicitous, Plaintiff’s Counsel did not respond at all to this April 29 motion within the time limits prescribed by the Local Rule governing motions practice in the Southern District of Florida, thereby placing Counsel in default and providing the district court with a sufficient basis for granting the April 29 motion as to the entitlement issue. See S.D. Fla. L.R. 7.1(c) (stating that “[e]ach party opposing a motion shall serve an opposing memorandum of law no later than fourteen (14) days after service of the motion. Failure to do so may be deemed sufficient cause for granting the motion by default.”).

And Plaintiff’s Counsel, by their default, admitted the factual allegations of vexatious conduct, bad faith, and multiplicity of proceedings contained in the 18-page, April 29 motion for attorneys’ fees under § 1927 against Plaintiff and its counsel. .... By virtue of their default, Plaintiff’s Counsel admitted the allegations in the April 29 motion, which were that they pursued a baseless claim knowing no evidence supported it, that this was vexatious conduct that amounted to bad faith, and that as a direct result of their unwillingness to abandon the clearly baseless claim, the Defendants had to defend themselves in the second summary judgment proceedings and the Young II appeal. The April 29 motion clearly alleged that all of the post-remand proceedings amounted to a bad faith pursuit of a baseless claim against Defendants Lukasik and Lecky without any evidence. Since that factual basis of the § 1927 motion was admitted by default, there was no factual dispute for the district court to resolve as to entitlement.

But Judge Whittemore says you need more than that to impose sanctions against counsel:
The district court’s initial fee award was only against Plaintiff Young Apartments. Indeed, in its October 12, 2011 order, the district expressly declined to award fees against Tedards and Weeks. In response, Defendants sought clarification, seeking a joint and several award of a portion of the fees against both attorneys under § 1927. Notwithstanding that the time to respond to the motion had not expired, the district court essentially reversed itself, modified its order, and imposed the challenged sanction against the attorneys. Counsel’s timely response in opposition to the motion was therefore rendered moot. Their motion to amend/correct the order was denied by the district court on the basis of the “prior default.”
This sounds like a nightmare scenario.

Judge Whittemore concludes as follows:
I agree with the majority that Tedards and Weeks were on notice that they faced potential liability under § 1927. Defendants’ initial motion for attorney’s fees cited 28 U.S.C. § 1927 and expressly sought a joint and several award against the attorneys. The district  court, with which the majority agrees, essentially concluded that by failing to respond to the initial motion seeking attorney's fees, the attorneys defaulted on the issue of entitlement and waived the right to be heard. While the term “default” may accurately describe the posture Tedards and Weeks put themselves in initially, I do not believe that under the circumstances they waived the right to be heard on joint and several liability or, just as importantly, on the amount of the sanction.
En banc time?

Monday, January 7, 2013

This is What a Mensch Looks Like.

Are you ready for some football?

I don't know about you, but the hype is bordering on ridiculous and according to both Le Batard and Herald political reporter/budding sports analyst Marc Caputo, nearly everyone in South Florida hates both teams and their visiting fans.

Welcome to Miami!

In other news, Dan Gelber plays the long game and shows us what it means to be a mensch:
Twenty-four years ago Big Brothers and Sisters matched me up with a 6-year-old little gap-toothed boy living in a poor Miami neighborhood I knew only as a place to avoid driving through.
Read this story. 

As we begin a new year let's think about how we can make a positive impact on the people around us -- in ways large, small, and in between.  Make this year count.

BTW, that photo of a young Danny Gelber in his acid washed jeans and sneaks is priceless:

Read more here:

Thursday, January 3, 2013

Gone Fishin'

Sorry for the late post, but it's too nice outside to stay in the office, so I've taken a "personal" day -- i.e., Gin Gibsons, cigars, late afternoon hot tubbing -- the normal things you'd expect from your friendly neighborhood legal blawger.

So much for my New Year's resolutions......

Catch you on the other side.

Wednesday, January 2, 2013

New Improved 2013 3d DCA Watch -- Same As It Ever Was.


Well it's a New Year and most of you are still away postponing the implementation of your New Year resolutions until at least next week when you are back in the office.

But not deep in the Bunker, which has been hard at work over the holiday break, toiling in the cold concrete darkness, cranking out new and improved ways to discuss the history of the phrase "cut and paste."

Anyone remember this gem from November 2012?

It's back:
Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of "cutting and pasting" comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½"-wide page, and then physically pasted them onto another page. Wikipedia,,_copy,_and_paste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.
So, first lesson of 2013:  Illinois courts still exist.

And what were your resolutions?