November 21, 2008

Brown, 33 FLW 2632, 4th DCA, error to grant def's motion to prohibit the state form using uncounseled prior felony for enhancement of current DUI charge to felony where the def did not actually receive a sentence of imprisonment in prior case of face sentencing exceeding 6 months in that case-died did not allege his prior DUI included an accident-received in order to show he was subject to a possibility of more than 6 months in the prior case-fact he spent 48 hours in jail prior to his area and after the arrest does not count to imprisonment

Williams, 33 FLW 2634, 4th DCA, handcuffing a def during a temporary detention amounted to unlawful seizure, stop was for speeding, driver of car was in custody before the def was handcuffed, so he posed no threat and pat-down found no weapons preceded the use of handcuffs-def's attempted disposal of marijuana and discovery of meth after the unlawful seizure was fruit of the poisonous tree

Griggs, 33 FLW 2648, 5th DCA, speedy trial-def was arrested when removed from scene of traffic stop and transported to police facility for purpose of ofc booking def or having him to agree to provide substantial assistance to police where it was quite clear to def if he did not accede to the investigator's offer "to talk about it" he would not have been released, agreement to cooperate without more does not act as waiver of speedy trial time-error to deny motion for 175 day discharge

S.E.B, 33 FLW 2661, 2nd DCA, error to deny to dismiss drug charges where evidence was insufficient to prove constructive possession of illegal contraband found beneath center console of vehicle in which juvenile was front-seat passenger and which was registered to the individual not in the car


The Law Offices of Roger P. Foley, P.A.

3d DCA Watch -- Special Ham-And-Egger Israeli Thanksgiving Day Edition!

Hi kiddies, it's a glorious Wednesday and yet I am still here in the office. Why the hail is that?

A better question -- why are you?

Go home, spend some time with your spouse, children and/or significant other(s). Give thanks. Help someone else out. That's what it's all about anyways, right? I mean, haven't you all seen Scrooged?

Still, there is no rest for the resplendently robed yet weary coffee-swillers down south, who toil silently in their prefab concrete courtroom bunker, dispensing PCAs like Thanksgiving turkeys at a Sarah Palin cookout, who must week after week feed the insatiable need for justice created by all you busy state court practitioners -- yes dear readers it's a very special Turkey Day edition of what those of us in the know like to call.....3d DCA Watch:

Oh goody -- it's reiterate basic law hornbook day! There are a whole raft of civil opinions this week, and yet not one that is even remotely profound. Get ready ham-and-eggers, this one's for you:

Sunny Isles v. Publix:

Note to Publix -- you have to exhaust your administrative remedies first before you sue to have some bullcrap "submerged land" counted as part of your new glorious shopping/housing/superstore/habitrail.

(And yes, I have to reluctantly admit that Judge Shepherd got this one right, with little to no obtuse linguistic construction or broad policy-making asides).

Oquendo v. Citizens Property:

No Virginia, you cannot get "fees on fees" in this District. But you knew that, didn't you?

Seagull v. Edlund:

A 2.0 contingency multiplier is not excessive, for reasons that cannot be disclosed, involving a set of facts that also cannot not disclosed. Please never refer to this opinion again.

Jenkins v. Motorola:

If you are pro se and constantly file motions that are utterly baseless and make no sense at all, you will eventually piss everyone off.

So let's see, anything else?

Israel v. Flick Mortgage:

Whoa -- what do we have here? A bunch of Israeli citizens all made purchases in Israel of homes located in Florida at something called "Lake Marion Golf Resort."

My mischpuchas, I could have told you you might as well plant an etrog tree on Mars -- you will not ever, under any circumstances, want to be anywhere near this alleged "Lake Marion Golf Resort."

Sure enough, finally someone learned this was a very bad idea, so they sue in Israel against the defendant and others to unwind the deal. Service effected by registered mail on Flicka here in South Florida, Flicka challenges personal jurisdiction in Israel, loses, stops defending, judgment obtained, case closed, right?

Flash forward and now the Israelis want to enforce the judgment in South Florida. Trial court says no, finding no personal jurisdiction in Israel because of insufficiency of service of process.

Oops! Turns out the statutes at issue are very specific and enumerate the grounds under which a defendant can deny enforceability. Relitigating how the defendant was notified of the lawsuit is not a valid ground, although the timing of notice could be. Here Flicka had plenty of notice and in fact appeared in Israel to challenge personal jurisdiction.

Plus, there's this little hornbook rule we have about raising claims of insufficiency of service of process:

In Florida, failure to raise insufficiency of service of process as a ground for dismissal at the earliest opportunity constitutes a waiver of that defense.

Since Flicka appeared in Israel and did not raise any issues about how they were served, they pretty much blew it.

See, I told you it was ham-and-egger day! And a great day for a few meshugena Israeli home buyers, who should know it would be all goyim living in something called "Lake Marion Golf Resort" -- assuming such a place even exists anyplace other than Arkansas or maybe near Gatlinburg.

So eat up, give thanks for all the blessings in your life, and rejoice that as bad as it may seem sometimes, there is much to be thankful for. Start small and count them all -- we live in a great country, we are fortunate to do what we do, and -- unless you are a Detroit Lions fan -- Thanksgiving is a nearly perfect holiday.

Why Not Me, Lord?

Ok, tell me if this ever happened to any of you.

A couple walk into your office. Apparently, the husband left his camera phone at McDonalds.

Not a big deal, you say?

True, but this little bugger had a few naughty pictures saved on his device.

And now those photos are all over the intertubes, and his wife is more than slightly embarrassed.

Of course, there is only one solution -- sue McDonalds:

Phillip Sherman of Arkansas learned that lesson after he left his phone behind at a McDonald's restaurant and the photos ended up online. Now he and his wife, Tina, are suing the McDonald's Corp., the franchise owner and the store manager.

The suit was filed Friday and seeks a jury trial and $3 million in damages for suffering, embarrassment and the cost of having to move to a new home.

The suit says that Phillip Sherman left the phone the Fayetteville store in July and that employees promised to secure it until he returned.

That cause of action seems a bit shaky, but by filing it you've managed to make your clients famous and publicize the photos even more!

I've previously complained about missing all the good cases, and it's true this happened in Arkansas, but it's really the kind of thing that belongs right here in South Florida.

Step it up, folks!

BREAKING -- Judge Lederman Holds Gay Adoption Ban Unconstitutional

Miami Herald story here:

Miami-Dade Circuit Judge Cindy Lederman Tuesday declared Florida's 50-year-old ban on gay adoptions unconstitutional -- a ruling state lawyers immediately said they would challenge.

The ruling sets the stage for Frank Gill, a gay man from North Miami, to adopt two foster children he has raised since 2004.

In a 53-page ruling, Judge Lederman said, ``It is clear that sexual orientation is not a predictor of a person's ability to parent.''

Two lawyers from the Florida Attorney General's Office said they would file an appeal Tuesday.

''We respect the court's decision,'' said Assistant Attorney General Valerie Martin. ``Based upon the wishes of our client, the Department of Children & Families, we will file an appeal.''

Gill, who is raising the half-brothers, ages 4 and 8, said he was ''elated'' by the ruling and ``I cried tears of joy for the first time in my life.''

Thank you Judge.

It's called progress, people.

Bad Idea Major Nelson -- Neil Shniderman Wanted to Keep Jeannie In Her Bottle

I don't know Fort Lauderdale attorney Neil Shniderman and I have never had a case with him.

After reading this recent opinion from the 4th DCA, I can safely say Mr. Shniderman did not grow up watching any sit-com TV.

According to the opinion, the guy was not truthful about whether he had a critical signed guaranty in his office safe, and more or less misrepresented to the Court and opposing counsel by implying the existence of the document, when he knew the whole time the signed guaranty never existed.

Even worse, he was hung by his own emails and communications with his clients, which established that he was aware the document never existed and that he was "mulling" over when and how to break this information to the other side, hoping to keep Jeannie in the bottle for as long as possible. You know it's bad when even your own client thinks you may have been too evasive in answering discovery.

I am going to post a substantial chunk of this opinion because it is a pretty amazing object lesson in how not to handle a bad fact in your case:

The request to produce generated a series of emails between
Shniderman and his clients. Shniderman’s “inclination” was to object to
the document request. The clients expressed concern about having the
judge “think we are being evasive.” In an August 26 e-mail, Shniderman
counseled his clients:

Where I am mulling is how to “break the news” to Silber.
There are several approaches and I need to flesh them out
for myself and then see what you . . . think . . . this is a
critical time . . . I want to keep the Genie in the bottle.

Augustine understood that the “genie in the bottle” and the “news” his
lawyer referred to was the fact that Fitness did not possess an executed
non-recourse guaranty as had been alleged in the verified complaint.

Consistent with his inclination, Shniderman filed an objection to the
request to produce, arguing that it was irrelevant and immaterial in light
of the trial court’s ruling on liability. As a second ground, the objection
stated:

Victor Grillo, Jr. and Stacey Grillo previously acknowledged
that they executed the document in question, and they can
obtain a co p y from their former counsel. Thus, the
document being sought is equally available to the
Defendants as [it is] to the Plaintiffs. The request is really
nothing more than an effort to harass the Plaintiff.

Shniderman admitted that when he raised that objection, he knew that
his clients were unable to produce an executed copy of Exhibit C. He
testified:

Q. And you, you were not going to advise the parties that
you could not produce that document?

A. Right. I was going to let the matter - - I was going to
object and let matters come to a head in front of the court
and the court could make whatever decision it wanted to
make.

E-mails from September 2004 between Shniderman and his clients
discussed various ways of handling the absence of the signed guaranty.
It was the clients who suggested that they should be “up front” with the
court, but Shniderman resisted full disclosure. At the hearing on the
motion to compel, Shniderman said nothing about the true state of
affairs and the circuit court overruled Fitness’ objections to the request
to produce and ordered it to produce the executed copy of Exhibit C
within 30 days.

After the order to produce, Shniderman and his clients decided to say
that the signed guaranty had once existed, but that “it now appears to be
missing.” Thus, in his notice of compliance filed in November 2004,
Shniderman wrote that Fitness previously possessed, but misplaced, the
non-recourse guaranty, so that it could not now produce a copy. He
further stated that Fitness “personnel know that the Guaranty actually
was executed, have searched and continue to search for another copy of
the executed document,” and that “[a]lthough FIT does not appear to
have retained a copy of the Guaranty, it has reason to believe that the
executed document is presently in the hands of person(s) and/or entities
not within the control of the plaintiff, including the defendants.” David
Augustine approved this statement before Shniderman filed it.

In early December 2004, Augustine told Shniderman that the
unexecuted Exhibit C was not the final form of the guaranty that had
been prepared. Shniderman discussed this subject in an e-mail to his
clients:

Recently, David [Augustine] told me the last version of the
non-recourse guaranty provides for two a n d not three
signatures, which is the version attached to the complaint,
so we have an additional issue to resolve and David will have
to deal with that in his deposition. One of you will have to
identify the actual last version of the document so we can
compare it to the exhibit. Amending the complaint would
correct the problem but that would be a big issue as it would
permit them to amend but more to the point, procedurally,
the Grillo defendants are “out” with stricken pleadings.

When confronted with this e-mail at the sanctions hearing, Shniderman
admitted that at the time he composed it, he knew that the verified
complaint contained false allegations and that his notice of compliance
contained false information. Shniderman did not advise the court of this
fact or seek to amend the complaint “because [he] was not sure exactly
what [he] needed to do,” and because he did not want to see the motion
to strike “unravel,” i.e., allow the defendants be relieved of the default
judgment.

Before his deposition by Grillo, Jr.’s counsel, Augustine asked
Shniderman in an email: “What are we telling him as a result of this?
That we’re not producing a n y docs at the depo?” Shniderman
responded:

We close it by saying we will not produce and that we will file
a motion for protective order. The burden is on us at this
point to move for protective order arguing we need not
produce in any event based on Wessel’s order and lack of
relevancy AND out of time. [capitalization in original]

Augustine responded:

I hate the idea of us seeming to trying to “hide” something
again – we lost on 10/20 on this same issue – do we want to
go before J. Fine, for the VERY FIRST TIME, with a motion
for Protective Order to avoid producing docs? [capitalization
in original]

In February 2005, Shniderman withdrew as counsel for Fitness.

Oy. BTW, Mr. Shniderman appears to be an adjunct Professor at Nova Law School.

The DBR has more on this opinion here.

Stormy Monday -- More BigFirm Layoffs; Possible Silver Lining?

Every time I turn around I see more layoffs and terminations.

I know a lot of you are lone wolf gunslingers, but for those who seek safety in numbers the lay of the land looks pretty rocky:

Mayer Brown: 33 attorneys and 55 support staff gone.

Brown Rudnick: 20 attorneys, 20 staff members and three paralegals gone.

Squire, Sanders & Dempsey: 30 attorneys and staff members gone.

The layoff toll keeps rising, and that was the bad news from a single day last week.

The past week was particularly grim for law firms, which is saying a lot considering that the past two months have seen quite a few major firms struggle as the economy continues to tailspin. Not only were associates and staff members cut loose, but several firms took some unique steps to reduce expenses as they head into a 2009 that looks to be financially difficult.

DLA Piper, the nation's largest firm, said that it would ask income partners to contribute capital into the firm — which it has never done before — to help reduce its reliance on bank credit. On top of that, the firm will reduce monthly payments to some of its top equity partners in the United States. The changes still must be approved by partners in December but are expected to take effect in January.

Raises and bonuses appear to be the next areas in which firms are looking to save. Bryan Cave said last week that it is pushing back associate and staff raises to April. They are typically given at the beginning of each new year. Additionally, the firm is canceling its shared-fee program, in which associates are paid a bonus for bringing in new clients. Discretionary staff bonuses for 2008 also are gone.

Cravath, Swaine & Moore told associates last week that year-end bonuses will be less than those paid in 2007 and 2006. At least one other firm has delayed distributing bonuses until 2009 in order to see where its finances stand at the end of 2008.

Still, associates at large law firms may just feel lucky to have a job. Last week's layoffs came on the heels of several other large attorney purges. Just days prior, White & Case bid adieu to 70 associates and counsel and about 90 staffers, and Orrick, Herrington & Sutcliffe laid off 40 attorneys and 35 staff members. Several other firms made smaller job reductions.

Some firms are even moving their lawyers overseas -- sayonara!

So what's a laid-off lawyer to do? Well, every door closing is another door opening.

BTW, I have suddenly found religion.

Maybe things are looking up after all.

SFL Saturday -- Bench and Bar Edition

Anyways so I roll up to the Diplomat Hotel yesterday morning looking, as 'trane noted, resplendent in my Van Dyke and feeling good about our profession after the tremendous showing of support for Ben on Thursday.

As I entered the Convention Area I spied a fit, older gentleman ordering a double at the hotel bar. It was none other than Judge Fay! "Come on over, SFL, I hate to drink alone!"

"Why yes, Your Honor, but isn't it a little early to be having a drink?"

"Son, you ever see The Verdict?"

"I have, Your Honor, one of my favorite films."

"Mine too. Sidney Lumet was the best. It's about corruption, how greed and avarice at the highest levels distort our ideals, bury us beneath our highest aspirations, and force us to slowly submit, to be comfortable with our small failures, to deceive ourselves day by day until there's nothing left of our souls."

"Um, yeah."

"The point is, son, to fight back. Rail against the injustices, don't be a patsy, expose the forces of corruption and fight for what's right dammit!"

With that the Judge cracked two raw eggs into his glass of whiskey, downed it immediately, and ordered another. "Now that's what I call breakfast."

So me and the Judge spent the next few hours compiling a list of our outrages, things that really bothered us. Why the hail DID Senator Clinton spend 11 days in Las Vegas giving one speech to a union? Why don't these Congresspeople work more? How comes federal judges keep getting their cost of living raises denied? What is it with these "fat cat" union bosses that won't allow secret ballots and that are tanking the auto industry? Did I mention the damn unions?

How about lobbyists -- I hate those jerks.

And so it went. Well, before you know it, it was nearly lunchtime.

"Darn it SFL, why didn't you remind me! I gotta give a speech for chrissakes! Hand me that pad, I'm going to tell everybody exactly what's on our minds! No holding back this time, SFL!"

"Judge, are you sure..." But before I could finish my sentence, the judge had jumped off his stool, grabbed the notepad and was gone.

I don't want to take all the credit, but that was one hail of a speech.

November 14, 2008

Jean-Marie, 33 FLW 2592, Argument: failure to call witness - no abuse of discretion in prohibiting defense counsel from pointing out in closing argument that state failed to call as a witness the detective who had taken def's statement and investigated the crime where there was no explanation how the detective, who was not a witness to the crime, could have spoken about any relevant issue. Fact that state used portion of statement defendant investigated the crime does not demonstrate that the detective could elucidate anything


Andl, 33 FLW 2611, 5th DCA, error to revoke probation for failure to promptly and truthfully answer inquiries of probation where lie was willful but not so substantial as to warrant a finding of violation of probation. The probationer had mental health issues and was making reasonable efforts to comply with rules of probation. The lie did not give rise to material violation or warrant a 3 year prison sentence, even though no justification existed for lying to p.o. and unnecessary expenditure of time and effort (DECISION RESTRICTED TO FACTS OF CASE)


G.T.J., 33 FLW 2616, 2nd DCA, Self-defense. State failed to rebut juvenile's prima facie case of self-defense, failed to carry burden to prove delinquent beyond a reasonable doubt. Juvenile provided unrebutted testimony that he swung a rod at the victim only after they began chasing him with one of the men brandishing a knife and that he swung his belt at the two of them only after one of them began to choke him. Evidence presented by the state did not rebut the juvenile's testimony regarding aggressive, violent conduct of victims, and neither victim denied that the juvenile had been threatened with the knife and choked.


The Law Offices of Roger P. Foley, P.A.

Tips To Help Spot SFL Tonight!

So I hope to see you all tonight at the Ben Kuehne fundraiser.

To enhance your chances of a successful meeting with your humble South Florida legal blogger, I offer the following tips:

1. As many of you know, I am on an intense diet. Thus, do not expect me to be chowing down on the many delectable eats that will be offered, unless they are serving oysters, ginseng, and vitamin E.

I am, however, likely to be hovering very near to the bar, perhaps indulging in the drink that certain flavored-vodka-lovers abhor. Be polite and offer me another.

2. It is true I am growing facial hair for charity this month. It has not been easy, but I shall not waver or be deterred in my cause. Simply lie and compliment me on my facial hair -- to do or say more would be inappropriate and frankly would not be believable.

BTW, don't forget to make a tax-deductible contribution to this worthwhile endeavor here.

3. This applies not just to me, but in any social situation. Put down your Crackberry. Trust me, you look like a schmuck standing around at a cocktail party fingering your little device instead of engaging someone in conversation. It's not hard -- go find Bob Josefsberg and ask him how he's doing.

Problem solved!

4. A related issue -- don't scan the room while talking to someone else. I know you want to pigeonhole that macher so you can brownnose your way to the top and you are instead stuck talking to that junior associate you have always hated, but stick with it fellas, and find a more polite way of moving on.

5. Try to be interesting. For many lawyers this is hard, but consider that what is fascinating to you might be incredibly dull to someone else. As a general rule this would mean you should avoid boring someone with:

a self-aggrandizing War Story;

a lengthy retelling of how you managed to file that ridiculously long summary judgment motion in the nick of time being careful to include an itemized list of all the secretarial and paralegal errors you encountered along the way;

any long descriptions of how only your child achieved something no other child in the world has ever achieved before; and, of course

any descriptions of your dreams.

Last but not least:

6. Come to the party in a gold one-piece swimsuit, with beaded cornrows in your hair.

Although if you are a male attorney it might not be best to break out this look for the first time at Ben's event, I promise dear readers of all persuasions that such a getup will guarantee many interesting conversations and you will indeed meet your humble legal blogger rather quickly upon arrival.

See you all at Christabelle's Quarter!

Vioxx Lawyer Will Need Major Drugs To Get Through Holiday Party

Look I know many of us are cutting back and watching our expenses as we get ready to do holiday lunches, holiday parties, and hand out holiday gifts. But this news from Vioxx lawyer Mark Lanier is simply a full frontal assault on my musical sensibilities:

Yet another famous singer will perform at this year’s annual holiday party hosted by Houston personal injury lawyer Mark Lanier, and any tween guests are likely to be pleased.

Miley Cyrus—who plays Hannah Montana on the Disney Channel—will perform, the Am Law Litigation Daily reports.

Last year Lanier gave out snow globes along with his invitations announcing that his musical guests would be country music stars Brooks & Dunn. This year’s invitation features a pop-up image of Cyrus and promises “Texas Bar-B-Q, Fajitas and Amusements,” the Tex Parte Blog reports.

Party guests are being asked to donate school supplies or money to buy the items for children in Guatemala.

Ok Mark, I'll grant you that assisting needy Guatemalan children is a very good cause. But dude, are your guests all 11-year-old girls?

Man you have got to butch up.

3d DCA Watch -- Oops I Did It Again Judge(!) Edition

Ok kiddies it's a fine cool hump day and like many of you, I have brought out my sweaters, vests, boots, scarves, hats, shawls, jackets, gloves, and firewood to celebrate South Florida's descent into sub-70 degree temperatures.

As cool as it is this morning, however, there is an even colder wind blowing north from that heat-controlled, fortified concrete courtroom by the highway, as our resplendently robed judges swill hot coffee yet dispense cold justice, and this week the chilly winds of reversal are all blowing directly into an open window at 73 West Flagler.

So without further adieu let's jump right into this week's oops let's-try-it-again 3d DCA Watch:

Holder v. State Farm:

Whoa! An opinion by Judge Schwartz that I actually agree with. Let's take a closer look:

A State Farm adjuster offered, and non-binding mediation confirmed, a net $65.00 ($9,065.00 in covered losses minus $9,000.00 deductible) for the settlement of Holder’s hurricane damage claim under his homeowner’s policy. A year later, Holder filed suit, whereupon State Farm invoked the binding arbitration clause of the policy. That process resulted in an appraisal award of $50,178.60, which State Farm promptly paid. Although it is obvious that the filing of the action directly resulted in the payment of over 500 times the amount previously offered, the trial judge denied a claim for attorney’s fees under § 627.428(1), Fla. Stat. (2007).

Huh? I mean, what kind of bone-headed decision is that? Who the hail was the trial jud....errr, nice to see you again Judge!! You're looking well, sir!

Well that was somewhat awkward, but enough of that, let's move on:

Dieudonne v. Publix:

Oh man. Here the trial judge granted a motion to dismiss with prejudice of a first complaint by a former Publix employee who was attempting to allege discrimination as to training and wages and ultimately termination based on her age. Publix successfully argued that the EEOC charge only dealt with other employment issues and that the plaintiff did not exhaust her remedies as to the termination charge. Judge Ramirez reversed, reasoning:

Although we agree that the complaint was properly dismissed, the dismissal should have been without prejudice.

Under Florida Rule of Civil Procedure 1.190(a), the plaintiff may amend as a matter of course at any time before a responsive pleading is served. Here, Publix’s motion to dismiss was not a pleading. Thus, Dieudonne could amend her complaint without leave of court. Further, “[r]efusal to allow an amendment is an abuse of the trial court’s discretion ‘unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.’” Gilbert v. Fla. Power & Light Co., 981 So. 2d 609, 612 (Fla. 4th DCA 2008).

As this was Dieudonne’s first complaint, the privilege to amend had not been abused and we are not convinced that amendment would be futile. We therefore conclude that the trial court abused its discretion in not allowing Dieudonne to amend her complaint.

Does it really matter who the trial judge was on this one? I mean, why get so technical about these things, anyone could have ruled this way, everyone has a bad week now and again, let's just forget about the stats this week and focus fresh on the future, shall we?

I don't want to sound too pollyannaish, but if you look at this from the glass-half-full perspective, every week brings another chance of being fully sustained on appeal.

Now you get back in there and make those rulings stick, Judge! And close your window, it's a little cold outside today.

More on Milton Ferrell

I've already covered the tragic loss of Milton Ferrell, and our condolences go out to his many friends and family.

Today's Herald story adds some heartbreaking dimension to his final days:

The scene unfolding in the intensive-care unit was extraordinary.

Milton M. Ferrell Jr. -- a second-generation Miami lawyer, philanthropist and Democratic Party activist just nine days past his 57th birthday -- lay dying. The primary cause: mesothelioma, an asbestos-linked cancer that cost him a lung in May.

Although it had spread to his brain, stomach, hip and remaining right lung, Ferrell rejected painkillers. He needed to stay sharp for his final legal battle.

Surrounded by wife Lori, son Morgan, daughter Whitney, and 10 lawyers, Ferrell gave a 3 ½-hour video deposition Friday for a lawsuit he filed just days earlier.

That done, ''he lived another 15 hours and 45 minutes,'' said Coral Gables lawyer Jim Ferraro, who's representing Ferrell's estate in the litigation, filed in Miami-Dade Circuit Court.

Unreal. But I scoured the article to get a better understanding of how this fine, refined, and wealthy lawyer contracted mesothelioma. This is the causal link alleged in the complaint:

The suit accuses the Big Three automakers and several brake manufacturers of causing his disease by marketing an ''unreasonably dangerous'' product, and failing to warn of its hazards.

The former Miami-Dade County Assistant State's Attorney-turned-defense lawyer-turned counsel to foreign governments and billionaires, had worked on cars in his youth, inhaling asbestos fibers during brake jobs, the complaint says.

His father, also an attorney, ''wanted his son to have a good work ethic,'' Ferraro said. ``He didn't just write him checks.''

I don't do this litigation, but is this a common claim? It strikes me as an uphill causation battle, although it's a complete mystery to me how he could have otherwise contracted this rare and horrific disease.

RIP Mr. Ferrell.

More Smart Decisions By Our School Board

So they spend good money to hire Murray Greenberg, he recommends they cut a deal, and they go ahead and fire her outright:

Rejecting the advice of a special counsel, the Miami-Dade School Board on Tuesday voted to fire a School Board attorney who accepted a moving payment from the school system but never moved to Miami-Dade County.

The board voted 6-3 to terminate JulieAnn Rico's contract on the grounds of ``misconduct in office.''

Special counsel Murray A. Greenberg, who was hired by the board to deal with issues relating to Rico's contract, had recommended that the board buy out Rico's contract for about $200,000 plus benefits.

Greenberg said Rico was certain to sue -- and that the case was far from a ''slam dunk'' in court. Greenberg also pointed out that litigation would be costly.

What's next -- they bring in "special defense counsel" Hank Adorno, spend plenty of money all around, then settle for $450k plus fees on the courthouse steps?

Good Lord -- Unintended Positive Effects of The Recession

Sure for us in the legal profession we can expect cheaper gifts and crappier wines, and no year-end bonuses this year.

Things are not all bad, however. Specifically, columnist David Brooks has hit on one unabashedly positive effect of our bleak economic times:

Recessions breed pessimism. That’s why birthrates tend to drop and suicide rates tend to rise. That’s why hemlines go down. Tamar Lewin of The New York Times reported on studies that show that the women selected to be Playboy Playmates of the Year tend to look more mature during recessions — older, heavier, more reassuring — though I have not verified this personally.

So "ladies of a certain age" are due for a comeback?

This is long overdue. Dear South Florida lawyers, if cheap wines and no year-end bonus (here's another take on that) is the price we have to pay, then by golly we will all just have to suffer through this together!

Gerry Richman Hates To Count Votes More Than Twice.

Well I was regaled this morning by John the shoeshine guy, who filled my head outside the courthouse with stories of Sugar Mountain, with the barkers and the colored balloons.

Actually he was telling me about his old outlaw days, before he found God, and how he used to help out all the high-priced lawyers, bankers, politicians, and muckety-mucks up there
in DC-land, where dope, hope, and bloat all live in cozy three-part harmony.

But he cleaned up his act, he's got the best shoeshine in town, and he's living the straight and narrow. Give the man a ten-spot, you cheap bastards.

Can we say the same for this town? Of course not -- it's still as crazy as ever.

And as crazy as Miami looks, the judicial scene just north of the border looks crazier still. And now it looks like the whole mishagosh is infecting Palm Beach County:

Circuit Judge Richard Wennet on Monday announced he will appeal the outcome of the Palm Beach County primary and ask for a special election to redo the race.

For three months, attorneys for Wennet and the man who unseated him, attorney William Abramson, have battled in court over a messy judicial election that involved misplaced ballots, multiple recounts and questionable counting machines.

Complicating matters further for Abramson is an unresolved Florida Bar complaint against him that could result in suspension of his law license. The judicial race between the two was always close. After the first machine and hand recounts in August, Wennet led by 60 votes. But problems at the Supervisor of Elections Office led to two more sets of recounts. Abramson won by 61 votes.

Wennet challenged the outcome in court in Tallahassee, but lost. His attorney, Gerald Richman, said they are appealing because they believe elections officials never should have gone beyond the first recount. "You can't have multiple recounts," Richman said.

David Shiner, Abramson's lawyer, was surprised by the appeal. "Our client Bill Abramson received more votes than Judge Wennet. That's an unequivocal fact," he said. "I find it very disingenuous and I think they're trying to strip the voters of their rights."

Wennet is seeking a new election, possibly in March during the scheduled municipal elections.

Oy. Maybe David is right, there's got to be a better way to select a judge.

News Flash: The Economy Sucks, The Market Sucks, But I Am Still Awesome.

For whatever reason, the ABA wants to know what dear readers of this crappy little blog think about the job market and the state of the economy. I've already told them, but they apparently want to know what you think, too.

You can fill out the survey here.

You can read about the results in the January ABA Journal, assuming you have not cancelled your ABA membership by then.

AmLaw 200 Fired List

There are other blogs documenting the atrocities in terms of layoff and terminations at our nation's biggest firms, but they're coming at such a dizzying pace it's instructive to see them all gathered in one place.

Fortunately, you can see continuing coverage and a collection of recent articles on the largest firms here.

So who's next, fellas?

I have to figure Hunton & Williams will be making a move pretty soon.

Milton Ferrell Jr., RIP

Billy Shields reports that Milton Ferrell has passed on:

Prominent Miami attorney Milton M. Ferrell Jr. has died from complications of mesothelioma, a form of cancer linked primarily to asbestos exposure, his firm confirmed today.

Ferrell started his legal career in Miami in 1977 when he joined his father’s legal practice handling criminal defense work. He shifted to civil litigation in the late 1980s and started taking international clients in 1993. With the turn of the millennium, Ferrell took his firm worldwide, opening offices in cities like Beirut, Buenos Aires and Mexico City.

A firm that in 2000 had one office and 12 lawyers mushroomed to a 17-office, 67-lawyer litigation boutique by 2003. The firm suffered some major departures but maintained its offices in New York and Buenos Aires.

Ferrell, 57, was lauded as a superb lawyer and a shrewd businessman who emphasized community involvement as past chairman of the Jackson Memorial Foundation and a board member of the American Red Cross of Greater Miami.

An active Democrat, Ferrell was the Florida finance chairman of U.S. Sen. John Kerry’s 2004 presidential campaign.

One of Ferrell’s last acts in court was as a plaintiff. He and his wife Lori filed an asbestos liability suit last week against Chrysler, General Motors, Borg Warner and others, alleging the companies were negligent in their use of asbestos, which he blamed for causing his mesothelioma.

Ferrell was a gentleman and will be missed. Services are 11 a.m. at Trinity.

Scott Rothstein Gets the Love.

I don't know who Scott's publicist is, but this Sun-Sentinel article is proof-positive that he or she should get an immediate raise:

Columnist Michael Mayo provides some insight into lawyer Scott Rothstein, who's become influential in Broward -- and beyond.

Here's Mayo's take:

I'll turn to the Yiddish of my grandparents to describe Scott Rothstein, a fast-talking, fast-rising Fort Lauderdale lawyer, businessman and political juggernaut.

In a town that has long been dominated by good ol' boys, the Bronx-born Rothstein has become a macher.

That means big shot. With a persona that's part Joe Pesci wiseguy, part H. Wayne Huizenga entrepreneur and part Imelda Marcos spender, Rothstein, 46, has roared from relative obscurity to the top of the local power structure in astonishing time.

"I'm going to ride this wave as long as God allows," Rothstein said Saturday.

In the past few days alone, Rothstein had a nice chat with his friend John McCain ("He asked how all our local races went; that's the kind of guy he is"); did some business in New York; held a fundraiser in Miami for rising Republican star Bobby Jindal (the Louisiana governor who might run for president in 2012); spent a day screening judicial applicants for Florida's 4th District Court of Appeal; eulogized one of his best friends, who was killed in a motorcycle wreck; and searched for a liver for a friend who needs a transplant.

Rothstein has become a heavy-hitter for the Republican Party, contributing hundreds of thousands of dollars this year. He was a major McCain supporter and fundraiser, and he was an early backer of Gov. Charlie Crist, incoming Florida Senate President Jeff Atwater and Broward County Sheriff Al Lamberti.

He's a budding philanthropist, recently donating $1 million to Holy Cross Hospital.

His law firm and business empire keep growing, even as the economy slides. While others struggle, Rothstein keeps spending lavishly.

"Whatever he's doing, it's working," said Fort Lauderdale lawyer Bill Scherer, longtime alpha dog in local Republican circles. "I chose his firm as my lawyers, to represent me in some attorney-fee litigation cases. That should tell you something."

Scott, the press is well-deserved. Congrats buddy.

As for big ole' Bill Scherer, that last comment really does tell me something. In a completely unrelated development, consider this story.

SFL Friday -- Mr. Blue Sky

So it's a sunny Friday, I'm going to ignore that the Dow is down 245 this afternoon, and try to focus on the positive.

Maybe I still have a slight post-election bounce, or maybe it was having the pleasure of seeing Gore Vidal speak to an overpacked house yesterday evening at the Miami Book Fair, but I can't help but feel things are due to get better, and that small steps are being taken in the right direction.

Indeed, I was so jazzed up yesterday that I must apologize to Alex Penelas and Jorge Perez, who were lunching next to me at Prime Blue Grill. I had no idea you didn't know all the words to "Mr. Blue Sky" and next time I will try to pick a song everyone can sing to. This never happens with Ira.

Either way I must soon collect my windsurfing gear, pack my many accoutrements, and hopefully beat an early retreat. I urge you all to do likewise.

Folks, enjoy your weekend wherever the winds may take you.

No Fireworks At White & Case Holiday Party; Why Not Cancel Christmas, Too?

Sure it's one thing for White & Case to lay off associates and staffers because of our dire economic times, but this is too much:

[T]he 2,400-lawyer international firm will be going ahead with the event at a midtown Manhattan restaurant, reports the Wall Street Journal Law Blog. However it's cutting back this year and plans to spend under $250,000, roughly half of what last year's gala at the United Nations cost.

And there also will be no fireworks, Law Blog reports.

So they are still going to blow $250k -- to celebrate what, exactly? -- but no fireworks. Then why even have it?

I hope there still will be cocktail weenies (if I know that firm's party, I can safely say yes).

Meanwhile, here in Miami they are laying off associates and staff:

White & Case confirmed it laid off eight associates and seven staffers in its Miami office this week as part of a firmwide cut that eliminated 70 associates and 90 nonprofessionals. Most of the fired workers are scheduled to leave by today.

Layoffs were needed to shed excess capacity in the economic slowdown, which hurt the firm’s business, firm spokesman Nicholas Clarke said. Attrition, which is higher in a stronger economy, slowed and forced the firm to make cuts across all of its practice areas. A hiring freeze also is in effect.

He declined to say who was let go but said very few of the job losses were performance-related.

How nice, Nicholas! So only "very few" were let go for performance-related reasons. In other words, you have now left all of these fired associates twisting in the wind. You should have simply said none were let go for performance reasons, or declined to answer.

Question -- is it worse to for the public to suspect you were let go because of your performance, or that you were let go despite your performance?

Conclusion to be drawn: Big-firmers, there is no safety in numbers. But you knew that already, right?

BTW, Abbe you look great in your photo.

Joe, well....nice to see you again.

Tampa Criminal Defense Attorney Internet Service Providers Become Cops

Tampa Criminal Defense Attorney reports that new tools being marketed by an overseas company checks every file flowing through an Internet service provider's network — every movie, every image, every document attached to an e-mail. The software compares for matches to a list of illegal images.

W. F. "Casey" Ebsary, Jr., has learned that the invasive new technology called "deep packet inspection," allows Internet companies to analyze data flowing through their networks. One leading expert on electronic privacy in the United States says the proposal would clearly run afoul of the U.S. Constitution. The expert opines that the technology essentially sets up a wiretap without obtaining a warrant from a judge.

According to the manufacturer, encrypted files on the peer-to-peer network could not be decrypted by the technology. However, the company claims it can fool the sender's computer into believing that the recipient was requesting an unencrypted and uncompressed file. The system calculates a hash value and compares the files to the list of illegal files.

Tampa Criminal Defense Attorney Lawyer ISP Cybercrime

November 7, 2008

Lynch, 33 FLW 880, Fla. Marital communication privilege, 90.504, only applies to communications originally intended to be confidential and not apply to a murder-suicide letter from a def to his wife which included the def's request that the wife disclose all the info to the murder's victim family. Privilege did not apply to 2 telephone conversations made by def to his wife during the commission of the charged offenses where the phone conversations were done in the presence of third parties.

Bartlett, 33 FLW 2521, 1st DCA. Error to allow primary detective to testify before he received a warrant for def's arrest for murder, he had ruled out self-defense-error for ofc to give lay opinion not harmless where could not show no reasonable possibility that the testimony affected the verdict

Rimes 33 FLW 2562, 5th DCA, error to deny challenge for cause who had a close friend who worked as a deputy sheriff and who stated he would tend to believe a police ofc over a lay witness-after brought back into the courtroom alone and asked leading questions was insufficient to erase reasonable doubt as to previous questions

McCain, 33 FLW 2569, 2nd DCA, Trafficking in narcotics, error to admit evidence that officer discovered baggie containing meth residue in def pocket after def arrested where, other than type of drug involved, there were no similarities between def's mere personal possession of baggie with meth residue and charges that def trafficked in large quantities of the substance and only relevance was to show def's propensity to commit drug crimes-not harmless where def stated he was in the car at the the time of the drug deal moved into the driver's seat to cause a quick departure and def unwittingly supplied vitamins to a friend that was used to "cut" and mix the drugs and was not aware of the deal done by a third party other than the def and a co-def.


The Law Office of Roger P. Foley, P.A.

It's Carver Time!

You are hungry, and must be fed.

Jack Thompson Now Muckraking From Inside the GOP Governor's Convention

Please please please let's not get all Jack-Thompson-chronic here, but I see Mr. Jack has taken out his pencil and pad and is now working the beat for conservative humanevents.com, reporting on the GOP Governor's convention going on at the Hotel Intercontinental this week.

Here is how Jack describes himself at the end of the article:

Mr. Thompson is a writer and former lawyer in Miami who was Janet Reno's Republican opponent in 1988 for State Attorney. He secured the first broadcast decency fines ever levied by the FCC (1989) and represented Oliver North at the 1992 Time Warner shareholders meeting, persuading TW to pull rapper Ice-T's "Cop Killer" from store shelves worldwide.

Alrighty then!

Delurker Amnesty Day!

Hi folks! Well I figured today would be a good day for all you dedicated readers who are also lurkers to come on out and say hi!

Don't be bashful, we know you're out there -- trial judges, court staff, law clerks, fancy-schmancy reporters, big firmers, ham-and-schleppers, even a few robed coffee-swillers.....

It's ok, the regulars will treat you nice -- look how well they treat newbie!

Introduce yourself, say a thing or two, hail you can even make something up -- it's the net, after all.

Thanks all for reading and contributing.

3d DCA Watch -- Wait Wait Don't Tell Me -- What's the Right Standard of Review Again?

Alrighty it's a fine, fit Wednesday and those fun-filled judges down by the con-creete highway have been busy busy busy, so let's jump right in and see what our favorite rogue bunch of robed coffee-swillers have been up to, yes it's that time of the week when mandates issue, reversals ensue, and PCAs sprout like Bic lighters at a Journey concert, oh hail baby it's time for 3d DCA Watch:

RKR Motors v. Associated Uniform Rental:

Shorter Judge Rothenberg: enforcing a liquidated damages clause is really a matter of equity. That means, if it feels right, do it! If it doesn't, don't.

Oh, and have fun trial judges!!

Mastec v. Cue:

Even shorter Judge Rothenberg: mediated settlements have to be in writing, or else they don't count. Also, water is wet and the sky is blue.

What else:

Ryder v. Davis:

This one made me laugh. It's hard enough to figure out how to analyze forum non issues under Kinney. Then you add the standard of review issue and all hail breaks loose.

Abuse of discretion, right? Not so fast, said the very bearded Judge Sorondo in a concurrence that has had predictably unintended consequences. Basically, if the trial court didn't analyze all the Kinney factors, then we get to analyze the ones the trial court missed under a de novo review.

Makes sense, right? Well, no not really, but let's let Judge Cope explain:

The standard of review is abuse of discretion. That is the standard stated in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86, 90-92 (Fla. 1996), and is the standard of review specified in the Court Commentary to Rule 1.061 (“Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse-of-discretion standard.”).

There has been some confusion because this court has recognized a limited exception where (a) the trial court did not address all of the Kinney factors, and (b) this court addressed the remaining Kinney factors for the first time on appeal. In that specific scenario, we have said that our court’s consideration of the previously unaddressed Kinney factors is de novo.

This limited exception was initially described in Judge Sorondo’s concurring opinion in Aerolineas Argentinas, S.A. v. Gimenez, 807 So. 2d 111, 115-17 (Fla. 3d DCA 2002). In that case the trial court had addressed only the first Kinney factor, and concluded that there was no adequate alternative forum. The trial court denied the motion and did not address the remaining three Kinney factors.

Relying on Judge Sorondo’s concurrence, this court repeated the point in Kawasaki Motors Corp. v. Foster, 899 So. 2d 408, 410-11 (Fla. 3d DCA 2005): “[R]eview of the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge[’]s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.”

So I think it's pretty clear that Judge Cope is saying it's all Judge Sorondo's fault. (I'm kidding, I'm kidding!)

Still, since Rudy has moved onto fancy private digs I guess Judge Cope will have to clean it all up:

Because the discussions in Kawasaki, WEG, and Bacardi are somewhat general, our pronouncements have led to a misimpression that this court is following a de novo standard of review in any forum non conveniens case in which the factual record is undisputed. That is not so.

As already stated, the Florida Supreme Court has specified that the standard of review is abuse of discretion, and we follow that standard. The only exception—a limited one—is when the trial court did not address (and therefore did not exercise any discretion) regarding one or more of the Kinney factors. In that situation, this court has the latitude to address the previously-unaddressed Kinney factors for the first time on appeal in the interest of judicial economy and efficiency.

There. Do I have to explain it all again to you numbskulls? It's abuse of discretion, except when it's not. How hard is that to understand? See above, then wash, rinse, and repeat.

Sheesh, I don't know how to make it any clearer, really I don't. You know what, I'm going to have some more of that free 3d DCA coffee and forget you guys.....

Republican Governors To Party Like It's 1955!

So all those cute, sexy Republican Governors are in town for their convention, and they're meeting at the Hotel Intercontinental downtown.

Wait, do they know the sordid history behind that building, the decades of bankruptcy, related litigation and all that misplaced, mislaid marble? Quick, call Judge Salter stat!

Anyways, let's look in at their schedule:

Post Welcome Reception LATE NIGHT PARTY (All Conference Attendees)
Hosted by: BGR Holding & Dutko Worldwide
Location: The Havana Club at the Miami City Club
200 S. Biscayne Boulevard, 55th Floor
Miami, Florida 33131

Alright! To paraphrase Louis Winthorpe III, I believe I am still a member of that club.

Maybe I can get all boozy and cigar-like in an old Havana-sort-of-way with Governor Palin (I'll probably have to fight off that demon-slayer Jindal first).

What else:

Post State Dinner LATE NIGHT PARTY
Hosted by: Blank Rome Government Relations
Location: The Delano
1685 Collins Avenue
Miami Beach, Florida 33139

Blank Rome? Do they even have an office here in South Florida?

Oops, apparently they do. My bad, Mike.....

Andrew Smulian -- Knee Deep in the Hoopla

I don't know, tell me what you think of this interview conducted by SFL fave and intrepid reporter Julie Kay of Akerman chairman Andrew Smulian.

Check out these two responses:

NLJ: How has the economy affected your law firm? Several sources said that three lawyers and five support staff were let go in your Miami office on Friday, including the co-chair of your distressed properties division, Tony Casareale, as well as of counsel Stu Cowitt. [Neither lawyer returned calls for comment from the NLJ. and they are no longer at the firm.] Can you comment on that? Are any further layoffs expected?

AS: I'm not going to get into any specifics about our employees. We do not have a program of anticipatory layoffs. The economy is the economy. We have a number of practice areas that are strong in this economy. They're helping overall. We're strong and a well-positioned firm and have a very good capital structure. We don't have debt and we're well positioned to weather an economic downturn.

That's what the dude from Lehman Brothers said too!

I kid, Andy, really I kid.

And this:

NLJ: Every firm has its own culture. What is the firm culture at Akerman?

AS: We really have a New York style to our practice. We're no nonsense. We're very professional. We're really concerned with adding value to our clients. Internally, we have a get-it-done culture, we're not flamboyant and there's not a lot of posturing, we're really to the point. Our clients are looking to us for value and efficient solutions. We're the go-to firm in Florida.

New York style, no nonsense, very professional, get-it-done.

Ok, now a few of those firm bio photos are starting to make some sense.

Armistice Day

What Rump said.

I would only add that the holiday originated as a celebration of peace and a remembrance of the dead, the eleventh hour of the eleventh day of the eleventh month when the nations of the world all laid down their arms, to never again engage in another war.

As the NYT puts it in an eloquent editorial today:

It is now 90 years since the guns stopped firing on the morning that ended World War I, the war that was supposed to end all wars. Nov. 11 is still remembered in Europe as Armistice Day. But in the United States, Armistice Day became Veterans Day in 1954.

It is fitting to celebrate all military veterans. The renaming also is one reason why so many Americans know so little about that first horrifying world war. So is the passage of time. We are nearly as far now from the end of the Vietnam War as the year 1954 was from the end of World War I.

Ask anyone what really caused the First World War and you are likely to draw a blank — at best, perhaps, a tale of an Austrian archduke shot in his car in Sarajevo in June 1914. There are images, too, from movies and books of the horrors of trench warfare, the colossal waste of human life in one catastrophic, peristaltic battle after another. In parts of Europe, there also is a social and genetic memory of the war, caused by the loss of a generation of young men who left no heirs and had no bearing on the world that succeeded them.

What we are likely to have forgotten is the horror the Great War stirred in those who witnessed it. For many, the full horror dawned slowly, as they clung to a comfortable self-insulation. As Vera Brittain wrote in her memoir, “Testament of Youth,” we would “never be at the mercy of Providence if only we understood that we ourselves are Providence.” That is a hard truth to take in. She struggled with the things we still struggle with, especially ridding herself of the feeling that “what was going on outside our homes didn’t matter to us.”

To seek peace, to oppose war, to cherish memory is a way to honor veterans on this day of armistice, this Veterans Day.

October 30, 2008

Jardines, 33 FLW 2455, 3rd DCA, where police received a tip as to criminal activity and observed other indications of criminal activity, officer had right to walk to front door of residence, and officer and dog were lawfully present at the front door of the residence, affidavit alleging that drug detection dog alerted to odor of marijuana inside residence was probable cause for search warrant-conflict certified, Raab 920 So. 2d 1175(4th DCA 2006)

DiPietro, 33 FLW 2470, 4th DCA, Third DUI, circuit court applied the correct law in concluding the defendant's two prior out-of-state convictions for driving while impaired qualified as prior offenses for purposes of imposing enhanced penalties for third alcohol-related offense, MacAdam v. State out of state DWAI offenses were sufficiently similar such that they could be used as prior convictions for enhanced sentencing.

Petion, 33 FLW 2505, 2nd DCA, consent to search vehicle. The stop of vehicle for inoperable tag light and illegal window tinting was illegal, where def initially gave his voluntary consent to search of the vehicle, including containers and compartments within the vehicle, def did not withdraw his consent by nonverbal communication when he failed to assist officers in opening a secret compartment inside the vehicle and simply shrugged when the officer explained that he would need to use tools to force the compartment open again.

Johnson, 33 FLW 2515, 1st DCA, defendant, who was passenger in the vehicle, which was stopped for failure to have the vehicle tag light and gave consent to the search of his person, was illegally detained when officer asked her to "sit tight" as def opened the door to exit the vehicle-illegal detention of def after he had given consent to search of his person, but before police conducted the search, created a taint which could only be overcome by a sufficient break in the chain of illegality, no evidence a break occurred search of def was non-consensual and evidence improperly seized.

The Law Office of Roger P. Foley, PA

Judge Hulk Smashes Joe Cool Verdict; Herald Approves

I almost never read Miami Herald editorials. They are usually banal, boring, and "measured" to the point of squeezing out anything remotely controversial or even interesting -- leaving only inoffensive and obvious truisms, poorly presented.

But today I have to agree with the Herald, which strongly endorsed Judge Hulk's smashing of the Joe Cool verdict:

Better late than never. This is the best that can be said about U.S. District Judge Paul Hulk's decision last week to throw out four guilty verdicts against a Hialeah security guard whose gun was used in the murders of a Miami Beach charter-boat captain and crew. It's a pity that Judge Hulk didn't realize the mistake earlier -- during trial -- when it could have spared the victims' grief-stricken family members another round of trauma.

Seething with anger, and busting out of his "puny human" clothes, Judge Hulk still managed to do the right thing:

That was a mistake, Judge Hulk said last week. He acknowledged that he should have told the jurors they could find Zarabozo guilty of the gun charges only if they also found him liable for the kidnappings or deaths. It is rare for a judge to publicly admit to a trial error, especially after a verdict has been rendered. For this, Judge Hulk deserves credit. It took courage and conviction for him to do so.

Perhaps we should not be so quick to judge the rampages and wanton destruction of buildings and property that are so often associated with Judge Hulk's courtroom rage. Maybe they are merely the product of a tortured, misunderstood and conflicted soul.

Oy. I should note this is not some typo -- the Herald got Judge Huck's name wrong nine times in that editorial.

This Seems Like a Good Cause.

I'm sure Mr. Markus will be all over this, but hey it's good to get the word out, don'tcha think?

BTW I will be there, and will confirm my identity to those who ask politely, serve me a dry Gin Gibson (straight up), and commit to make a donation to our Movember facial hair growth charity fundraiser.

PLEASE JOIN

CO-CHAIRS
The Honorable Gerald Kogan & Robert Josefsberg

AND HOST COMMITTEE MEMBERS

The Florida Association of Criminal Defense Lawyers
The Miami Chapter of the Florida Association of Criminal Defense Lawyers
Ray Abadin, Robert Ader, Frank Angones, Jeffrey S. Bass, David Bogenschutz, Ron Book,
Bennett Brummer, Richard Burton, Bob Butterworth, Jennifer Coberly, Kendall Coffey,
Hank Coxe, Alan Dimond, Steven Eisenberg, Peggy Fisher, Rick Freedman, Tomas Gamba,
Mayor Joseph Geller, Ervin Gonzalez, Jonathan Goodman, Fred Haddad, Larry Handfield, Arturo
Hernandez, Richard Hersch, Robert Hertzberg, Milton Hirsch, Elizabeth Hitt, Dennis Kainen,
Hank Klein, Joe Klock, Thomas Korge, Albert Krieger, John Lazarus, Hector Lombana, Bruce
Lyons, Wallace Magathan, David Markus, Amanda Maxwell, Jon May, Richard Milstein, Michael
Moskowitz, Jorge Mursuli, Pam Perry, Mark Raymond, Bill Richey, David Rothman, Frank
Rubino, Leonard Sands, Mark Schnapp, Joseph Serota, Richard Sharpstein, Angela Sherrill,
John K. Shubin, Lisa Sloat, H.T. Smith, Russell Smith, Ed Strongin,
Brian Tannebaum, Rod Vereen, Stanley Wakshlag, Mayor Otis Wallace, Jeffrey Watson

FOR A RECEPTION & FUNDRAISER TO BENEFIT
THE BENEDICT P. KUEHNE, LEGAL DEFENSE FUND

CHRISTABELLE’S QUARTER
3157 Commodore Plaza
Miami, Florida 33133

THURSDAY, NOVEMBER 20, 2008
6:00 P.M. – 8:00 P.M.

Suggested Contribution of $200.00 Payable to
“Benedict P. Kuehne, Legal Defense Fund”

If unable to attend, kindly send contribution to
Shubin & Bass
46 S.W. 1st Street, 3rd Floor
Miami, Florida 33130

R.S.V.P. to Nydia Marrero at
305.381.6060 or
nmarrero@shubinbass.com

Complimentary Valet Parking

Obama and Judicial Appointments

Well that was a restorative weekend, right? Great weather, the Dolphins won, Ted Ginn didn't suck, so already things seem to be getting a little better. And yes, the windsurfing was sublime.

Here's an interesting article on the number of judicial appointments at the district and appellate level that Obama will likely be making in the near-term. Note his ability to help moderate the deeply conservative 4th Circuit:

By contrast, 14 seats are open on appeals courts or will be by the end of January. Democratic appointees are a majority on only one of the 13 federal appeals courts, the San Francisco-based 9th U.S. Circuit Court of Appeals.

These are the courts that as a practical matter have the final say on everyday issues that affect millions of people because the Supreme Court accepts less than 2 percent of the cases appealed to the justices.

"Most of the action is in the lower courts, from labor and employment law to civil rights to punitive damages to affirmative action and how the death penalty is administered," said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute in Washington.

The traditionally conservative 4th U.S. Circuit Court of Appeals, based in Richmond, Va., is the first court on which Obama can change the balance of power quickly. It has four openings and is divided now between five judges appointed by Republican presidents and five named by Democrat Bill Clinton.

Covering Maryland, the Carolinas and Virginia, the 4th Circuit hears a large share of national security and intelligence cases because Virginia is the home of the Pentagon and the Central Intelligence Agency.

Shapiro estimates that within four years, Obama can name enough judges to give Democrats majorities on nine of the 13 appeals courts.

Nan Aron, president of the liberal Alliance for Justice, has complained that Bush appointees have been more likely to rule in favor of executive authority, businesses in their disputes with workers and consumers, and limiting access to the courts.

Judges appointed by Obama can be expected to side more often with "workers, consumers, homeowners, women and people of color who were discriminated against," Aron said.

I don't know if it's as reductionist as the writer paints it above, but certainly I'd like to see a rollback on the massively expanding doctrine of preemption in tort and products cases, more awareness of the nature of business misconduct and how it affects the average consumer, and of course a return to solid constitutional values that unfortunately we have strayed too often from over the last six or so years. Oh, and for gosh sakes, please close Gitmo.

Is that too much to ask?

SFL Friday -- I'm Out of Here!

Well kiddies, it's been an eventful week and I'm plum exhausted. In between all this electioneering stuff I had to throw a little law in there too, and you know how annoying that can be.

So to recap --I harmonized with Ira Kurzban, and the good guy won. I suppose a few other things happened as well, but that's the basic gist of it from my perspective.

Anyways, it's time to shut my computer down and take advantage of prime windsurfing conditions. If all goes well, I expect to have a dry Gin Gibson in approximately four hours (apologies to my flavored smirnoff drinkers) and perhaps saunter over to the auto show.

I hope you all have a superior, Mornin'-in-America kind of weekend.

For Alvin Davis Diehards Only

I think the picture pretty much sums it up, I really have nothing more to add.

Oh No -- Here Come The Commies!

I knew with well-known Indonesian Muslim/Palestinian/60s radical Obama in charge, we could expect a full-scale commie takeover of the Justice Department.

And now it begins:

David Ogden, who during the Clinton administration led DOJ's civil division and also served as chief of staff to Janet Reno, is leading the transition team for the department, reports the Washington Post. Ogden is currently a partner at the WilmerHale law firm.

WilmerHale? Here is David's profile at that notorious Marxist think tank. Why not just name Bill Ayers and Angela Davis to head DOJ and be done with it?

And look at his qualifications -- editor-in-chief of the Harvard Law Review and later a United States Supreme Court law clerk. Clearly, he cannot hold a candle to the jurisprudential genius of Harriet Miers!

Anyone from South Florida rumored to be part of the transition team? Feel free to email me with any good intel.

Yes Virginia, They Still Write Letters.

Yawn....I started to read the letter Roberto Martinez felt compelled to share with Herald readers, but then I got a bit sleepy.....

Tuesday, democracy in America won. It is now time to come together and to give our full support to Barack Obama, a person of extraordinary qualities and skills. He earned and deserved his victory. He has the ability to lead our country effectively and be a successful president.

Zzzzzzzz.....Huh?

Oh yeah, I was reading Roberto's letter. Good points and all, a bit platitudinous but let see what else he has to say:

Regardless of how we voted, the differences in our political views are small. We share common principles and values, and with that common bond we stand together strong.

Ok. I mean, I agree with that, shouldn't everybody?

Boy my eyes are getting tired, let me try to get through this, what else:

It is time to celebrate and to get to work as a united country. I congratulate Obama for his historic victory and thank John McCain for his lifetime of service and sacrifice to our country. We were fortunate to have two exceptional people as presidential candidates. We now have one person who will be president -- for all of us. He deserves our full support.

Oh man, Roberto. If you're going to write the Herald, you need to punch it up a little. You have to consider that your letter will appear right next to this sweet woman who thinks America has been cursed by God for electing Barack Obama.

See, now that's the sense of drama and blinding stupidity that Herald letter editors love.

3d DCA Watch -- Heads I Win, Tails You Lose Edition

Oh yes it's our first post-election 3d DCA Watch, so let's dispense with all the usual niceties and get right to it -- there is a hunger across this nation, a desire for change, a demand that we live up to the ideals of this great country, yes we can 3d DCA yes we can!! (sorry got a little lost there)

Ahem. So what exactly have our coffee-swilling Chosen Ones been up to this week --


Gold v. West Flagler:

Oh goody! I love a good improper-closing-arguments opinion. It's literally like flipping a coin, that's how loosey-goosey the standard can be. Let's see who won the coin toss this time....

Alright, this one is your typical slip-and-fall. Here's what defense counsel (Angones, McClure & Garcia) said in closing:

I’ve been doing this for almost 30 years now, and it invariably happens somebody falls down somewhere. They don’t know why they fell. They don’t know for sure where they fell. The investigator and the photographer go back to the scene of the accident. They go around and take pictures of everything they can find that looks bad.

Hold on, the defense lawyer is talking about himself, he's saying all kinds of things about other cases not before the Court, what "they" invariably do, pictures of random dangerous objects, what the hail?

Objection, your honor!

Judge David C. Miller: overruled.

Judgment for defendants.

So what do you think?

Here is Judge Cortinas explaining the affirmance in its totality and giving all of us ham-and-schleppers guidance for the next time at closing we have occasion to discuss our own personal experience as lawyers and what "they" always do in random other cases not before the jury:

We begin by finding that defense counsel’s statement was clearly improper and the court erred by not sustaining the objection. However, after reviewing the entire trial record, we find that such error was harmless, and therefore, is not a basis for reversal.

Oh well, better luck next coin flip!

Anything else?

South Motor Co. v. Poltarack:

This is an appeal of an order certifying a DUTPA class against South Motors for alleged automobile leasing improprieties.

Do I even have to tell you all what the 3d DCA did here?

Dog bites man, people.

Kertesz v. The Spa Floral:

This is a godawful boring opinion that I note only because it features yet another Movember supporter and general good guy, Michael Ehrenstein.

Don't forget, you can contribute all month to our charitable facial hair growth fundraiser right here.