SFL Friday -- Turtlenecks and Calvados Edition!

Hi kids, well it's almost that time, I'm starting to get a little antsy to start the weekend, how about you?

A few items I wanted to highlight before I go -- overthinking your putt will screw you up, there is apparently some kind of sporting event this weekend, and good 'ole Normie Kent, who has been fighting the good fight for as long as I can remember, has a new blog.

Note to JT -- time for a new bookmark! (Please, no chronics....)

And this one made me chuckle:

Evan Chesler thinks the billable hour is outmoded:

“This is the time to get rid of the billable hour,” said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.

“Clients are concerned about the budgets, more so than perhaps a year or two ago,” he added, with a lawyer’s gift for understatement.

Evan, you have always been both a tremendous lawyer and insufferable gasbag -- and I say that affectionately.

But seriously, you're just now starting to pick up on this?

Mr. Chesler, who is an advocate of the new billing practices, said that instead of paying for hours worked, more clients are paying Cravath flat fees for handling transactions and success fees for positive outcomes, as well as payments for meeting other benchmarks. He said that such arrangements were still a relatively small part of his firm’s total business, but declined to discuss billable rates and prices in detail.

Wow -- you mean alternative billing arrangements exist? Are they really real Daddy? I think the key for some is probably to ensure that whatever arrangement exists, you make about as much from the client as you could have under the traditional arrangement.

Or maybe I'm being cynical:

“I like to paraphrase Churchill,” Mr. Krebs said. “In all these conversations, never has so little been accomplished by so many for so long. It just hasn’t happened.”

Not at Cravath, anyways.

Finally, with temperatures dropping to the arctic 40s this weekend, it'll be a nice time to cozy up with your favorite someone, break out the snifter and calvados, and find a nice, mutually satisfactory way to stay warm.

Have a great weekend everyone!

Merger Mania?

Interesting story by Alana Roberts on the uptick in mergers, particularly at the midsize firm level:

As law firm merger activity has accelerated nationally, South Florida firms have gotten into the dealmaking.

Fort Lauderdale-based litigation firm Gordon Hargrove & James got together with San Francisco-based business law firm Sedgwick Detert Moran & Arnold after the latter firm targeted the Southeast for expansion.

Michael Tanenbaum, the Newark, N.J.-based chair of Sedgwick Detert, said its 12 offices provided it with coverage of the West, Southwest, Midwest and Northeast.

The South has become a major place of interest by law firms looking to merge.

The combination of Sedgwick and Gordon is one of 20 mergers around the country that are scheduled to close in the first quarter, and that number could grow to 25.

In recent South Florida activity, Coral Gables-based Adorno & Yoss grew by acquisition and recruiting to 300 attorneys, merging with Houston-based Monty Partners last September. In the same month, it acquired a seven-attorney group from Gordon Hargrove & James.

The 40-lawyer Katzman Garfinkel & Rosenbaum is the product of a June 2008 merger between Fort Lauderdale-based Katzman & Korr and Maitland-based Garfinkel Trial Group. The combined firm has since added an office in Las Vegas.

The Jan. 1 merger of the 400-lawyer Sedgwick firm with the 21-lawyer Gordon Hargrove & James firm offers the geographic presence the larger California firm was seeking.

“We believe and our clients have informed us, in order to provide comprehensive service to our clients, it was important we have an office in the Southeast,” Tanenbaum said. “We have been working with lawyers from Gordon Hargrove & James for a number of years for a number of different clients, so it was just one of those circumstances where there was a perfect match where we could provide benefit to them and they could provide benefit to us.”

A couple of observations -- South Florida is a notoriously bad place for larger national firms to establish offices, though there have been a few recent exceptions. It's uncertain whether the economic downturn will eventually force even those few exceptions to become closer to the rule. In the case of Gordon Hargrove, it seems to be more an issue of acquisition than merger, given the size dynamics.

Second, midsize mergers with firms from out of state present a different set of problems, including issues of personality, compensation, control and direction. There will also be a need to consolidate and streamline operations, which inevitably means some staffers, administrators and perhaps lawyers will have to be let go. I would expect a few lawyers to peel off at the initial stages, with more cuts after the consolidation becomes entrenched. We already saw some Gordon Hargrove lawyers bail out, no doubt aware of the acquisition talks and looking for a better fit or opportunity.

However it turns out, we wish them all well. Remember, in this economy one should be happy to have jobs, clients, and opportunities.

And cameras, diets, Gibsons, Bolero, windsurfing etc...

Oops -- sorry, I got ahead of myself.

It is Friday, you know.

Never Give A Sucker An Even Break!

Well I sure hope everyone is watching that great PBS documentary series on comedy in America, Make 'Em Laugh, which was on again last night. If you want insight into the anti-authoritarian, mostly Jewish outsider perspective that motivates us to make a lawyer or judge joke on this crappy blog every so often, take a look at this well-produced anthology.

Too bad Richard Cohen's op-ed in today's Miami Herald makes me feel quite certain this guy is no yiddisher cup.

In other news, Michael Hanzman files a lawsuit and the defendant offers $1.7 billion to settle on the very same day.

And it still doesn't look like it's enough.

Business as usual, I guess.

Talk to you all later!

A People's Investiture.

What a remarkable reception this afternoon for Carlos J. Martinez, our first elected Hispanic Public Defender in United States history. From pumping gas at an Exxon station to Miami-Dade College and on to law school and more.

Great idea to hold it at the Freedom Tower, where Carlos and his parents first arrived to find freedom and opportunity in this country.

A moving invocation from former APD and now-Reverend Frank Philip. Beautiful comments and testimonials from Senator Frederica Wilson and Frank Angones.

Wherever you stand on Brummer, Carlos etc., it was hard to not get swept up in all the positive energy and good will filling the room.

Carlos, we are proud of you and know you will do the best anyone can under these trying circumstances.

And remember, when times get tough, take solace in our new taxpayer-financed Marlins Stadium -- those few thousand who show up (and Dave Samson) are really going to enjoy themselves.

3d DCA Watch Addendum -- Judge Salter Makes A Giant Boo-Boo.

Everyone knows we love Judge Salter around here, but several readers have alerted me to this whopper, in finding that a class rep is not "adequate" because it (a small company with limited assets) could not personally shoulder the costs of class notice:

While the class’s attorney’s fees may be contingent, the costs of mailouts, administration of opt-outs, establishment of a web site, expert witness fees, document production, and transcripts, for example, generally fall in significant part on the class representatives.

Could the Judge be referring to some alternative, Superman-like, bizarro universe where class reps themselves -- and not their law firms -- routinely pay the costs of notice, expert fees, doc production and transcripts?

Wouldn't that seem to go against the whole point of class action representation; you know, the damages are small, the victims often poor and unable to bring the action on their own etc.?

"Come on, Ms. Foggybottom -- I know that mortgage company docked a dime a month from you and millions of others wrongly for years, and your damages are about $12. Still, it's time for the notice costs and we'll need $.9 million or else you'll have to drop your claim and owe the defendant their costs and fees!

Also, those video transcripts and expert fees ran another $44k, so pay up!

By the way, how's your goiter?"

Class action litigators -- am I missing something here?

Don't worry Judge, we still love you, and that's why the rules permit motions for rehearing.

3d DCA Watch -- The Not-So-Innocent, Elvis, and Judge Schwartz Edition

Hi kiddies, it's a chock-filled, action-packed 3d DCA Watch this week, so without further adieu let's jump right in and see what our resplendently robed coffee swillers to the south are up to:

Well, whaddaya know? In a single week the 3d decided to issue opinions on the enforceability of consumer arbitration clauses; the economic loss rule and fiduciary duty claims; and the standards for disqualification of a judge.

In other words, three of the most messed-up areas of 3d DCA jurisprudence -- and they're all repeats! Let's see how they did:

Hialeah Automotive v. Basulto:

We previously covered this consumer arbitration clause case here. (You may recall the ruling drove me to haikus to fully express my feelings.)

Well now the Court granted reconsideration and substituted this opinion, which in my view does not add too much. There is now some additional language regarding whether a clause in the Potamkin Dodge contract limits the right to obtain injunctive relief pursuant to FDUTPA, and also some interesting observations from Judge Cope regarding the need to establish both procedural and substantive unconscionability.

Punting on that question for now, Judge Cope writes:

Assuming arguendo that procedural unconscionability is required, that condition should be deemed to be satisfied where, as here, the arbitration clause is a non-negotiated provision contained in a pre-printed form.

Pssst -- don't tell Judge Shepherd about this language!

Hallock v. Holiday Isle:

Does anyone really understand the economic loss rule? And for now I'd like to restrict that question solely to our esteemed judiciary.

Hey, it's a joke! Tough crowd.....

This time a mystery contract was "exhumed" six years into the litigation. Question -- does that mean the fiduciary duty claim is in or out? Please keep your answer to 4000 words or less.

Here's what the 3d said:

Hallock cites our decision in Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So. 2d 1263, 1266-67 (Fla. 3d DCA 2000), which quoted from Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), stating that the economic loss rule “should not be invoked to bar well-established causes of actions in tort.” We then stated that “[b]reach of fiduciary duty is one of those well-established torts.” Invo Florida, 751 So. 2d at 1267. We concluded “that Moransais makes it clear that the economic loss rule has not abolished the cause of action for breach of fiduciary duty, even if there is an underlying oral or written contract.” Id.

Well that's pretty clear, right? Not so fast--

We further stated in Hallock I “that there is a genuine issue of material fact as to whether Holiday Isle breached its fiduciary duty to Hallock in opening a competing restaurant next door to Rip’s, the Steakhouse, and in diverting assets and employees from the partnership to the Steakhouse.” Id. at 463. The joint venture agreement expressly grants Tosun authority over the employees, where it states that “[a]ll personnel employed by the Venture shall be employees of Holiday Isle.” As the manager, Tosun was given the duty and authority to hire, place and supervise all employees. Likewise, Tosun had “full authority as to the conduct of the business.” This language is broad enough to encompass the moving of equipment and supplies. If Tosun cannot breach the agreement by moving equipment and reassigning employees, this conduct also cannot form the basis for a breach of fiduciary duty claim.

So the fiduciary duty cause of action exists, but cannot be pursued because the contract permits the complained-of conduct.

I hope that clears things up.

Clarendon v. Shogreen:

This PCA opinion is notable for three reasons -- 1) it involves the inestimable Susan Lerner; 2) the respondent's first name is ELVIS; and 3) it has a blistering Judge Schwartz dissent.

Here are the facts per the PCA opinion:

The petitioner seeks a writ of prohibition quashing both (1) a decision by three circuit judges of the circuit court appellate division who participated in a per curiam affirmance of a county court judgment against the petitioner, and (2) an order in which one of the three judges denied the petitioner’s motion to disqualify her. We deny the petition.

The county court judgment affirmed by the three-judge panel was for a personal injury protection claim for an amount of approximately $2400. One of the three appellate division panel members, years earlier and while in private practice, signed a county court small claims complaint (alleging damages between $100 and $500) against the petitioner. Her husband and then-partner in the small law firm sought sanctions against the petitioner and allegedly expressed an intention to put the petitioner out of business.

In the later case heard by the judge and her two circuit court colleagues, the petitioner did not learn which judges would comprise the appellate division panel until the day of argument on the appeal, but moved a few days later to disqualify that judge. Because the panel had already reached its decision to affirm the county court judgment, the circuit judge who was sought to be disqualified denied the motion to disqualify as moot. The petitioner sought prohibition here, and a prior panel of this Court quashed the order.

The panel seems to think that enough is enough:

We now deny that second petition. The litigants are headed toward the third anniversary of a county court case against an insurer for a claim of approximately $2400. Employing the standard of review for disqualification of an appellate judge, we deny the petition on the authority of Carlton. Even assuming the appellate judge’s spouse stated that he intended to “put Clarendon out of business,” a $2400 claim could hardly achieve this.

But Judge Schwartz disagrees:

In my judgment, the antagonism and antipathy of the judge and her ex-partner-spouse towards the petitioner, as demonstrated by the record, which included, among other things, a statement by her husband that as a result of Clarendon’s actions in defense of a suit brought by their law firm that “he intended to ‘put Clarendon out of business,’” makes it impossible to sustain that ruling. Hence, I would grant prohibition.

Wow! The judge isn't done -- Judge Schwartz then drops this bomb of a footnote:

The fact that an action being maintained by the judge’s law firm against Clarendon for several months was voluntarily dismissed, without explanation, on the very day argument was held in the appellate division of the circuit court surpasses all innocent explanation.

"Surpasses all innocent explanation" -- that's a new one on me.

Three gueses as to who he's referring to?

JPK To Helm Greenberg Traurig?

I kid I kid -- he joined a small firm, remember?

Actually, it's Cesar giving way to Richard Rosenbaum:

Greenberg Traurig's Cesar Alvarez, who has presided over a more than four-fold increase in the Miami-based law firm's ranks since becoming chief executive 12 years ago, will hand over the reins to President Richard A. Rosenbaum next year.

Alvarez, 61, will become the executive chairman, devoting his time to the firm's growth as well as changes affecting the industry, the firm said in a statement.

Wow -- no more Cesar at the helm of GT, Steel Hector gone, Fine Jacobson gone, Finley Kumble gone, David Paul gone -- boy I'm starting to feel pretty darn old.

You did good, Mr. Alvarez.

Hy Shapiro Raises Interesting Legal Question.

Let's say you're a nice young Miami Beach arms dealer, interested in shipping huge amounts of ancient Chinese munitions, stored in dubious conditions in Albania for decades, to our fightin' boys in Afghanistan.

Oh -- you also want to grossly overcharge American taxpayers in the process, and still have time to take in a nice dinner at Barton G before nightfall.

Just another American patriot, you say?

Not so fast -- turns out it became illegal in 1989 to acquire Chinese munitions:

Now Diveroli's lawyers are pushing to have the indictment dismissed, saying he didn't violate the U.S. embargo because the Albanians acquired the Chinese munitions during the Cold War -- some 15 to 27 years before the embargo took effect. Diveroli didn't buy them from Albania until late 2007.

''Despite the fact that the embargo was not imposed until 1989, the charges are based on the theory that even trading in pre-embargo munitions violates the embargo and [federal] regulation,'' defense lawyers Howard Srebnick and Hy Shapiro wrote in court papers.

They said the government's criminal case is ``mistaken, as a matter of law.''

But prosecutors counter that defense lawyers have created ambiguity where there is none.

Prosecutors said a Defense Department regulation in AEY's contract prohibits suppliers from providing munitions ''acquired directly or indirectly from Communist Chinese military companies.'' They said the word ''indirectly'' applies to the company's purchase of Chinese-made weapons from the Albanian government -- regardless of the passage of time -- and its subsequent sale to the U.S. Army.

U.S. District Judge Joan Lenard could rule on the defense's dismissal request at any time.

Hmm, methinks Hy might be on the losing side of this one.

It doesn't help that prosecutors also allege:

In 2007, the State Department e-mailed the young Miami Beach munitions dealer to tell him that he could not sell Chinese weaponry to the U.S. government to help supply allied forces in Afghanistan, according to an indictment.

But Diveroli, president of AEY, and three of his employees didn't take no for an answer, prosecutors said. They even arranged to have ''Made in China'' markings removed from the wooden crates shipped to Afghanistan to conceal the origins of the weaponry, prosecutors said in court papers.

''In order to conceal the ammunition's true origin, the defendants repackaged the ammunition and falsely represented that it had been manufactured and originated in Albania,'' wrote Assistant U.S. Attorneys James Koukios and Eloisa Delgado Fernandez.

Ahh, the kids today (two pictured above) -- so precocious, so full of mischief!

Note -- eminent litigator and friend of the blog Scotty Dimond has absolutely nothing to do with this story.

Still, his photo right below Efraim's just seemed so....right somehow?

That's Why I Love Miami....

My inner Philosopher-King got slightly annoyed by this WP opinion piece by sitting 4th Circuit Court of Appeals Judge J. Harvie Wilkinson III, in which he both denies that the 4th Circuit is ideologically very conservative, yet pleads that the status quo on that bench stay the same forever:

Ideological fervor is law's great antithesis. This is especially true on the courts of appeal, which, unlike the Supreme Court, do not have self-selected dockets and whose cases are often more technically challenging than ideologically flavored. Congress put federal circuit judges on panels of three for a reason -- namely, so that we could listen as well as talk, give as well as take and make the accommodations (more narrow rulings, less strident opinions) without which appellate courts cannot function. The 4th Circuit has never prided itself on ideology but on the collegiality that takes minds out of concrete and prevents personal animosities from clouding and distorting the essential act of judgment.

I don't take issue with any of that, though I wonder if Brown v. Board of Education could have occurred in the absence of a small amount of "ideological fervor." Also, the judge ignores that the appellate courts are frequently the incubators of change, leading to divergent approaches among the Circuits that are ultimately reconciled by the Supremes or by legislative action.

Those of us trained in the "legal realism" taught at the University of Miami also would question the judge's apparent view that the "law" can be plucked from the clouds free of human influence if we simply look hard enough. The judge pleads for appointments to the 4th that will not create a "polarized" court, yet many think that Circuit is polarized already and out of step with the rest of the country (and even this current Supreme Court) on most legal issues. Query whether any of this needs to be on the opinion page of the Washington Post.

Meanwhile, Stu Grossman gasps in suspended disbelief:

Michael McNerney and Anthony Livoti Jr. are well-respected advocates and have been fixtures in the legal community for decades.

McNerney served as chairman of the University of Florida Law Center Board of Trustees and the Fort Lauderdale Chamber of Commerce's downtown council, among many trusted positions.

Livoti was a well-known litigator in Broward County courtrooms who earned the respect of a number of judges. He served on boards of directors of such causes as the Art for AIDS Auction and was a nominee for a Florida Bar pro bono award.

"I am in suspended disbelief over the allegations," said attorney Stuart Grossman of Miami's Grossman Roth, who worked with McNerney when both were Florida Bar officers. "When a lawyer is charged, the whole legal community gasps, and when it's a lawyer of Mike McNerney's stature, I think they gasp, and they have a feeling of utter disbelief."

Anyone know the background here?

Finally, apologies to Randy Newman, but this is so Miami:

Confusion about the route altered the race for the two front-runners.

Basweti, 22, was in the lead Sunday at about Mile 20, saw a video truck turn unexpectedly and got distracted. He followed the truck, which, according to race organizers, had been incorrectly ordered off the course by a police officer.

Benazzouz Slimani of Morocco, the eventual winner in 2 hours, 16 minutes, 49 seconds, said he also got confused and followed Basweti. But by the time the Kenyan realized his Moroccan competitor had turned around and gotten back on track, Basweti trailed the lead pack. He finally caught up but said the mishap caused him to expend so much energy -- emotional and otherwise -- he didn't have the final oomph to win the race he led with a fellow Kenyan for the first 10 miles.

Oh well, sorry about that -- we'll get it right next time!

Fifth District Reverses Equitable Distribution

The Fifth District Court of Appeal, in Hoye v. Hoye, today reversed a Final Judgment on the grounds that the lower tribunal failed to assign values to all significant assets, and failing to distribute other assets or their full value. In citing Reich and Bussey this case again stands for the proposition that it is error to fail to identify marital assets and their values.

SFL Friday -- Nicolas Sarkozy And Me.

Ok, so it's a slow news day, legal news-wise, and I had little to offer besides thoughts on mentoring young lawyers, drunk Brits, teenagers and porn, and of course Alan Rolnick.

In other words, it's pretty much been a regular Friday.

Yet I was saved by an alert reader, who forwarded this fascinating story on how French President Nicolas Sarkozy is on a fabulous new diet:

In the past 10 months, Julie Imperiali, a former dancer and gymnast, has helped Mr Sarkozy to lose almost 4kg (8.8lb) and two trouser sizes.

She was introduced to the President by his wife, Carla Bruni-Sarkozy, who has been following her training method for the past four years.

Her so-called Tectonic method focuses on the perineal muscles at the bottom of the pelvis, which she insists improves her clients' posture, body and mind, but also their libido.

It's hard to believe this is an actual news story about the President of France, but hey, like that old Chinese proverb -- we live in interesting times.

Anyways, I am off to catch a few early waves this weekend, where like President Sarkozy I will be studiously working on improving my posture, body, and mind.

Have a great weekend everybody!

Be A Mentor, You Plebes!

Even if it's just tutoring everyone's favorite newb on the finer points of our practice, it's a good thing to be a mentor to somebody else.

So as we reach the end of National Mentoring Month, take a moment to reflect on who you are helping to become a better attorney -- an associate, an intern, a clerk. My own experience is I became a better attorney, a more idealized version of myself, by helping others in my practice. And I am sure the attorney who mentored me for many years felt the same.

You can read some tributes to mentors from famous people such as Ray Charles, Bill Clinton and Oprah here.

BTW, thank you "Whiplash" Willie Gingrich.

Actually, I also learned a lot from Oliver Wendell Douglas and Lionel Hutz--and boy does that explain a lot.

In other news, Brits drink too much, teenagers learn from porn, and Alan Rolnick fondly remembers Premium Sales.

Try to say that three times fast!

Ahh, good times.

Yet Another Imputation of Income Reversed

The First District Court yesterday, despite approving a finding of over $300,000.00 in dissipated assets, finding voluntary underemployment, finding entitlement to alimony and attorneys' fees, was still forced to reject the imputation of income to the Former Husband in Rabbath v. Farid, finding as is so seemingly common in recent opinions that sufficient competent evidence did not support the level of the imputation, and remanded the matter for reconsideration of the level of income supported by the evidence.

Alvin Davis On Firing "A Couple," "Some," and "A Few People."

Intrepid reporter Julie Kay delivers this deliciously rich language from Alvin in describing layoffs at SSD:

Alvin Davis, managing partner of Squire Sanders' Miami office, said on Friday that nine employees in Miami were laid off at the firm on Thursday, including "a couple runners, some staffers and a few people in accounting."

Got it -- what a bunch of anonymous nobodies.

And here's talented legal recruiter Abbe Mald Bunt on the significance of these firings:

"Part of it is humans have been replaced by technology, but the sad part is technology is not who gathers in the communal kitchens to keep the culture and spirit of a firm alive."

Note to Abbe -- those kitchen-lurking slackers usually consist of "a couple runners, some staffers, and a few people in accounting."

Anyways, what are you talking about -- have you seen that rockin' shirt/vest/glasses combo?

The spirit's alive, baby, oh yes it's alive.

Second District Further Restricts Ordini

The Second District Court, in Oluwek v. Oluwek, today confirmed previous rulings to the effect that evidence payments from family will continue in the future are a requirement to impute income based on Ordini and its progeny. Of interest is that, contrary to prior rulings like Vorcheimer, only the Husband testified below that the payments had ceased and could not continue, and no other evidence was presented on the subject.

Fourth District Interprets F.S. 61.14

The Fourth District Court of Appeal, granting rehearing in French v. French, found error in the lower court's decision not to modify alimony in that case despite finding that a supportive relationship existed in the former wife's current circumstances, and reversed. The Court found that, in determining that a supportive relationship does exist pursuant to §61.14, it is error to not reduce or terminate alimony.

Judicial Hot Potato in MBC Litigation -- Kendall Coffey Miraculously Available For Comment.

What's with Judges Cooke and Huck recusing themselves from the Mutual Benefits prosecution?

Last week, federal prosecutors unsealed an additional 30-page indictment charging Mutual Benefits’ founders and legal advisers with conspiracy, fraud and money laundering.

The case was randomly assigned to U.S. District Judge Marcia Cooke. However, Cooke issued an order Tuesday saying she was stepping aside.

U.S. District Judge Paul Huck, who then received the case, recused himself Thursday. Huck’s order, without giving specifics, cited “a conflict,” though he had presided over earlier criminal matters related to Mutual Benefits.

Steven Larimore, chief administrator for the federal court in South Florida, transferred the case Thursday afternoon to a third jurist, U.S. District Judge Adalberto Jordan.

On top of that, there were these additional staffing issues:

The back-to-back judicial recusals, unparalleled in recent memory, followed an unusual decision by the two highest-ranking lawyers in the local U.S. Attorney’s Office to have no further involvement in matters related to Mutual Benefits.

Luckily, by some miracle, Kendall Coffey was available and provided the following insight:

Former U.S. Attorney Kendall Coffey said the officials might be stepping aside to avoid “even the appearance of a conflict” in the case.

“Public officers have every right to stand back when conflict concerns arise,” Coffey said.

Question -- is there some contractual obligation to include a Kendall Coffey quote in any story ever written about our federal courts or the U.S. Attorney's Office?

Wait, hold on -- I have a call coming in.

SFL: "Hello? Why yes Kendall, that's funny I was just about to post a story....ok, that's weird, you already knew that?

Alright, go ahead, what's the answer -- do you really have to be quoted in everything?"

KC: "Yes, I do."

SFL: "Thought so. Great, thanks. Talk to you soon, I'm sure."

KC: "Yes, you will."

January 9, 2009

Nowell, 34 FLW 26, Fla Sup Ct., Murder case revered unlawful strike in voir dire for the following reasons; prosecutor's general feeling or "dislike" of juror not genuine race neutral, juror's age not legitimate where other juror left on jury was equally applicable and not challenged by the state, prosecutor's concern about juror following the law based on juror's wife job at day care center and his philosophy on death penalty was contradicted by the record, concern that juror felt he was judging the person, offered by the prosecutor was an "afterthought"when trial court revisited the issue the following day, was equally applicable to other jurors not challenged.


Sheppard, 34 FLW 5, 2nd DCA, aiding and abetting-although there was sufficient evidence that def was guilty of aiding another person in selling and delivering cocaine to undercover officer, insufficient in aiding and abetting possession of that cocaine no showing actually or constructively possessed that cocaine or aided or abetted the other person in acquiring or retaining the cocaine-JOA for possession should have been granted


Steadman, 34 FLW 78, 2nd DCA, Pat down-plain feel, ofc justified in conducting a pat down here, however, ofc did not lawfully remove plastic baggie of cannabis from def's pocket where he did not immediately recognize items as contraband, but instead needed to extract "baggie" to discover what it contained-error to deny motion to suppress, Perkins, 979 So. 2d 409(1st DCA 2008).


Stumpf, 34 FLW 87, 4th DCA, CCF without a license-def who worked as a volunteer with Fla. Fish and Wildlife Commission, and authorized to carry firearm as part of his employment was exempt from licensing requirement for CCF although the def had been placed on inactive status but not officially suspended, 790.052

Sharrard, 34 FLW 94, 4th DCA, Circuit Court exceeded jurisdiction by entering orders requiring DOC to effect warrant less arrests of def on c.c. or probation upon def testing positive for a prohibited substance and require Dept to transport offender to jail-violate separation of powers.



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

3d DCA Watch -- Nail Polish, Elephants And Judge Schwartz

Hi kiddies, it's a cold clear Wednesday, and to be honest I'm still basking in the afterglow. Boy that was fun, huh?

But then I received a nasty letter from opposing counsel that got me pretty steamed so yes, reality is starting to seep back in.

Hail, at this rate I may be all Carvered-up again before this day is done.

Anyways, it's that time of the week when we take a look at our favorite group of resplendently robed opinion-generators, those lovable, laudable coffee-swillers who toil in the warm, comfy confines of that concrete judicial fortress by the highway, yes it's our own patented 3d DCA Watch:

Miami-Dade v. Valdez:

I thought Judge Schwartz was supposed to be retired? Yet here he is, still cranking 'em out in 2009!

This one is an appeal of an "excellent" Judge Venzer appellate division decision, which found that some poor homeowner whose house is now entirely surrounded by highways and commercial property resulted in the continuance of "reverse spot zoning."

What's interesting here is footnote 2, where Judge Schwartz writes:

Legal consequences are “determined not by what [something] is called, but by what it does” and is.

I agree completely with this, btw.

Judge Schwartz continues:

For example, I am called "retired," yet I continue to churn out opinions and sit on appellate panels. And I will continue to do so for the rest of your legal career. That is what I do.

He then added, "so deal with it, you plebes!"

I kid I kid, of course.

But he did actually write this:

Otherwise stated, “you can put nail polish on an elephant, but . . . .”

Hmm, where have I heard something like this before?

Nail polish is a lot like....lipstick. And an elephant is a lot like a....pig.

Could this be a veiled yet timely political reference from our favorite senior jurist?

If you want even more "retired" Judge Schwartz, read his persuasive special concurrence on foreseeability, negligence, and duty of care in Aircraft Logistics v. H.E. Sutton.

Not bad for a retired old dude.

Brad, Have You Ever Seen "Back To School"?

Yes it's true I am a little giddy today.

This article on an "affair" dating service founded by a lawyer had this unintentionally hilarious quote:

In addition to being operated by a lawyer, Ashley Madison is also used by lawyers, the New York Post reports. A Post writer went undercover to meet clients of the agency. (Her online posting at the site reportedly elicited 544 e-mail responses in less than a week.)

Among those who responded was a lawyer who took her to lunch at a swanky steakhouse in Midtown Manhattan, recounts Post reporter Stefanie Cohen:

" 'Look, marriage is like a corporation,' Brad, a 43-year-old attorney, tells me. 'You have a budget, you have employees, and you have a business plan to keep it running smoothly. Sometimes you have to subcontract out the romance.' "

Psssh, Brad, you are a total twit.

Where is Sally Kellerman when you need her?

Awesome!

That sure was some inaugural ceremony.

Is it just me, or was anyone else surprised by how well Justice Kogan played the violin?

Well done, Your Honor!

"You Got to Admit, It's Getting Better (It Can't Get Much Worse)."

Hi kiddies, well it's the big day so I'm gonna try to stay positive. For example, I'm not going to mention John Pacenti's solid coverage of this report on Alex Acosta's supervision of "good American" Bradley Schlozman.

First, some fun background on Scholzman:

"Bradley J. Schlozman is systematically attempting to purge all Civil Rights appellate attorneys hired under Democratic administrations," the lawyer wrote, saying that he appeared to be "targeting minority women lawyers" in the section and was replacing them with "white, invariably Christian men." The lawyer also alleged that "Schlozman told one recently hired attorney that it was his intention to drive these attorneys out of the Appellate Section so that he could replace them with 'good Americans.'"

This is from John's article:

Acosta served as assistant attorney general for the civil rights division from August 2003 to June 2005; Schlozman succeeded him on an interim basis for five months and was succeeded by Wan Kim.

“We concluded that Acosta and Kim did not sufficiently supervise Schlozman,” the report states. “In light of indications they had about Schlozman’s conduct and judgment, they failed to ensure that Schlozman’s hiring and personnel decisions were based on proper considerations.”

Acosta declined comment through a spokeswoman.

Schlozman’s attorney, William Jordan of Atlanta-based Alston & Bird, issued a statement saying the report was “inaccurate, incomplete, biased, unsupported by law and contrary to the facts.”

South Florida attorneys contacted for this article were reluctant to talk about the report on the record.

Kendall Coffey, who served as U.S. attorney as a Democratic appointee, defended Acosta, a Republican appointee, saying his record on hiring as U.S. attorney is exemplary.

“It’s not uncommon for agency heads to delegate hiring due to the many other responsibilities they face,” Coffey said. “Look at his real record on hiring and the hiring he has done as U.S. attorney. It has been based on very high standards, and there is no taint of any partisanship.”

Weird -- they were able to reach Kendall Coffey for a comment.

Oh well, good times. But why look back (to paraphrase Dylan) --it's a new day, right?

So whether you'll be watching the inauguration at the Arsht Center, or at Gusman, or Tobacco Road, or in the conference room at your law firm, have a good time, send some good vibes and let's keep our fingers crossed.

As that obscure songwriting duo from Liverpool put it, "you got to admit it's getting better (it can't get much worse)"......

2d DCA Approves Contempt, Rejects Incarceration

The Second District Court, in Pierce v. Pierce, affirmed a finding of contempt and rejected an argument that the lower tribunal should have reduced an alimony award on which contempt was sought prior to the filing of any supplemental petition for modify. They drew the line, however, at permitting the lower tribunal to order incarceration without a separate affirmative finding of ability to pay the purge amount.

2d DCA Rejects Fee Award for Lack of Evidence

The Second District Court ruled on Friday that the nearly forty thousand dollar fee award in Braswell v. Braswell was to be reversed without opportunity for new hearing, in that insufficient evidence was put before the lower court to justify a fee award. The 2d DCA was quite clear that the full invoices and records of fees, in their entirety, as well as testimony from counsel, are a mandatory requirement for any award of fees.

Help Out on MLK Day -- Take An Associate to Lunch!

Let me say it up front -- I love Melanie Damian (Chris, you're ok, too).

I even like Pete Valori.

And that's why I want everyone reading this blog to take this associate of theirs out to lunch:

Even though Russell Landy, 26, has a good job as an associate at Damian & Valori, a downtown Miami law firm, he notices a new frugality creeping into his spending decisions.

He goes out to lunch less often and chooses cheaper restaurants for dinner with his girlfriend or forgoes dessert at more expensive eateries. A big football fan, he decided earlier this month against spending $100 or more for a ticket to the Miami Dolphins playoff game.

When it comes to buying a new car to replace his 8-year-old Chevy Trailblazer, Landy's thriftiness shines through. He is shopping for a less expensive car than he otherwise could afford because he wants money for other purchases and to set aside for his retirement.

''You have the desire to get the nicest car you can possibly get, and while I'm in a relatively good financial situation and lucky to have a job, I'm looking to take one step down so maybe I'll have a little more disposable income for other stuff,'' said Landy, who bought a town house last year near Dadeland Mall.

Come on, lend a hand -- you don't want this hard-working, capable associate stuck at his desk at lunch, do you?

I tell you, I'm starting to get really ticked off at this whole economy thing.

SFL Friday -- MLK Weekend Edition

Well kiddies, it's been an eventful week, and I'm about to head out. First I'll stop by the Bank of America, then maybe Citibank and then head over to Circuit City....

I'm grabbing my wetsuit though because indications are that it may be a little chilly for serious windsurfing.

But a guy's got to do what a guy's go to do.

Anyways, I do hope to find some time to volunteer over MLK weekend -- you can find a list of service activities in the South Florida area here or here. Get off your tuches and lend a hand.

Have fun, help out, diets, Gibsons, cameras, windsurfing....it's all good if you stay positive.

Have a great weekend everybody!

Gerry Richman Writes Letter To DBR Containing 112-Word Sentence.

But who's counting, anyway:

That single fact instead lies buried on the inside second page where it is given no prominence and may not be seen by many readers: There could not possibly be a “conspiracy” involving The Florida Bar, its president and myself who is proudly a partner of The Bar president, because the vote of the Board of Governors appealing the recommendation by the referee in William Abramson’s third disciplinary proceeding that he again be publicly reprimanded be appealed to seek a harsher and more appropriate discipline of a 91-day suspension took place with all members of the Palm Beach County representatives to the Board of Governors including my partner, Jay White, recusing themselves.

More fun Richman sentence stats:

Seven lines!

684 characters (with spaces)

Only 160 words and three lines less than the entire Gettysburg Address.

Mellon Bank Now Run By Gang of Blithering Simians.

Gerry Katcher, a dear friend of SFL and a guy who has provided loans to most of us in town at some point or another (and we paid it all back -- mostly), just got unceremoniously dumped by a group of heartless chimps:

At 82, Gerald Katcher liked to say he planned to keep running Miami's Mellon United National Bank ``until I die -- and for a few months afterward.''

But on Tuesday, a top executive from its New York-based owner, Bank of New York Mellon, flew in on a corporate jet for a hastily called meeting and fired Katcher as chairman of the bank he helped found 30 years ago. Under Katcher's leadership, the commercial bank had grown to $2.3 billion in assets from less than $10 million.

''He told me to leave the bank immediately and turn in my key,'' Katcher said. ``He said access to my computer was terminated and my personal belongings would be packed up and sent to me.''

Then, a BNY Mellon human-resources staffer, who flew down with David F. Lamere, vice chairman and CEO of BNY Mellon Wealth Management, escorted Katcher from the building, asking him to hand over his parking card.

Way to stay classy, Mellon Bank. At least these farewell comments by a Mellon spokeswoman were truly touching:

''We wish Mr. Katcher well in all his future endeavors.''

Hey, she almost sounds like Mike Casey!

New Amendment to Florida Family Law Rule 12.010

Florida Family Law Rule of Procedure 12.010 states the purpose of the family law rules themselves. It has today seen amendments approved by the Supreme Court available here. In essence the amendment removes any reference to how the rules should be construed and includes in the purpose of the rules the avoidance of multiple cases by the same parties.

Senator Charlie Crist?

Poor Charlie, he's always being told he has to run for something. First it's honorary pig roast captain, then it's Veep to McCain (that turned out well!), now it's Senator:

National Republican Senatorial Committee Chairman John Cornyn (Texas) on Wednesday said efforts are ongoing to persuade Florida Gov. Charlie Crist (R) to run for his state’s open Senate seat.

“We’re going to continue to visit. It’s very early in the game, but recruitment is important and the ability to be competitive on the financial front is very important too. We’re working on both of those fronts,” Cornyn told The Hill.

So who would that leave for Governor? Big Danny Gelber, or maybe the Jebinator all over again?

Joe Klock 3.0 -- Suing Insurance Companies At a Small Firm?

But where will he park his corporate jet:

Prominent South Florida litigator Joseph Klock Jr. is leaving the Miami office of Epstein Becker & Green after two years to join the Coral Gables firm of Rasco Reininger Perez Esquenazi & Vigil as a name partner today.

The firm’s new name will be Rasco Klock Reininger Perez Esquenazi Vigil & Nieto.

Klock, who was forced out as managing partner of Steel Hector & Davis before its 2005 merger with Squire Sanders & Dempsey, left that firm to join Epstein Becker in February 2007.

So two years at SSD, two years at Mike Casey's shop, and now a small firm in the Gables. Here is Joe's explanation for the move:

Klock said he left because client conflicts prevented him from pursuing cases at the 400-lawyer Epstein Becker firm, and his experience with the firm was positive.

“They treated me very well,” he said. “A lot of their success has caused me some problems. They represent so many insurance companies, it represents a conflict from my practice point of view.”

When asked if compensation was a factor, Klock said, “Let’s put it this way, I wouldn’t be making a move if I thought I’d be making less money.”

In other words, Joe is now a plaintiff's lawyer who wants to sue insurance companies? Oh well, it's Miami -- you can be anybody you want to be.

He's bringing three lawyers too:

Steve Reininger, co-founder of Rasco Reininger Perez Esquenazi & Vigil, said Klock is bringing three attorneys with him, including Epstein associate Juan Carlos Antorcha and Berger Singerman shareholder Gabriel Nieto, who will join the firm as a partner. Klock said he’s also bringing Epstein Becker associate Rashida Ivy with him as an associate.

And here is Epstein's Mike Casey on the departure:

Michael Casey, managing partner of Epstein Becker & Green’s Miami office, said Klock’s departure is amicable.

He said Klock’s new firm offered him a strong compensation package and a name partnership. Casey said he didn’t know compensation details.

“They cut him a great deal,” Casey said. “He’s going to be a name partner in the firm, which is important to Joe and a lot of people, and as far as I know they cut him probably a great deal on the comp issues too.”
Epstein Becker will continue its working relationship with Klock by referring cases to him and accepting referrals from him, Casey said.

“He’s been a friend of mine for over 30 years,” Casey said.

“I wish him all the best, continued success and good health.”

Mike, it's nice to be positive and all, but tone it down a little -- you seem more thrilled about the move than anybody.

I'm kidding, I'm kidding -- this all seems like a win-win.

Congrats to all, and good luck at Rasco Klock Reininger Perez Esquenazi Vigil & Nieto (oy -- let's call it "RKRPEVN" for short).