Law Updates for May 22, 2009

Suarez, 34 FLW 967, 3rd DCA, Limitation of actions. Incarceration in federal prison within state did not constitute absence from state for tolling of statute of limitations, where state issued warrant for def's arrest while in federal prison located in Florida, but did not serve the warrant until after the def was released and SOL expired trial court properly dismissed the charge

Mainwaring, 34 FLW 976, 5th DCA, speedy trail-unavailability-incarceration in another county-where the court was aware that the def was held in jail in another county, as evidenced by the fact the trial court had issued several transportation orders which were not honored by the other county, and refusal to transfer, seemingly the result of miscommunication, confusion or administrative convenience was not justified, def was not "unavailable" for trial-error to deny the motion to discharge

Bonus:
Montejo v. La., 07-1529, May 26th, 2009, USSC, overrules Michigan v. Jackson, twenty-year old case: police can initiate interrogation of a criminal defendant post-magistrate or other similar proceeding unless the def actually invokes his right to a lawyer or otherwise asserted his 6th Amendment right to counsel where he stood mute at the hearing and the judge ordered appointment of counsel. BAD DECISION


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

SFL Friday -- Before The Flood

Didn't this week start with the weather all dark and rainy? Why does Friday feel like Monday?

But that's ok, it's always windsurfing weather somewhere -- you just have to find it like. say, in China.

But I hope you stay dry and do something productive and fun this weekend.

Did you see Jeremy Alters just won a billion dollar verdict.....against the Cuban government. Could you imagine if at the end of the hearing Judge Adrien denied it or granted a JNOV?

It's nice to win, Jeremy, but it's no fun when the other side won't put up a fight!

Me, I plan the usual diversions. First and foremost is to pump those endorphins, then I plan to learn more about something called a "Marinelli bend," study how certain people hold their glasses, and of course I will probably wind up in Davie gazing at a Lover's Moon.

Actually, I do plan to sit still long enough to watch the new Churchill war movie on HBO, Into The Storm. What can I say, Churchill war porn always does it for me, folks.

Hey look -- none other than our very own Glenn Garvin makes the front page of HuffPost! Trust me, Glenn, more exposure for you is probably not a good thing.

And finally, I urge you to wrap your hands around something delicious this weekend -- I always do!

Have a nice one, folks.

Are Ted Olsen And David Boies Just Better Than We Are?

Via AL there is an interesting post at PrawfsBlawg on the new suit by Ted Olsen and David Boies that challenges Prop 8 on Constitutional grounds.

I just read the complaint and think it's a total crapshoot, as the issues are framed as purely ones of Due Process and Equal Protection under the United States Constitution.

Professor Araiza questions the timing and motive of the suit, and notes that legal activists in the trenches are not too pleased that two huge Supreme Court bigshots have jumped into the fray:

I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

I know a little about Boies and litigated with him (the 2000 recount) and against him (on a few commercial matters). I know many lawyers who now work with him. He's very skilled and impressive but can't just wave a magic wand and line up the votes on such a squirrely legal issue.

Olsen is a whole other can of worms, but I have to assume he's sincere and wants to win this on the merits.

Still, it's not a good sign that they apparently did not coordinate this filing with the folks who are litigating these issues on a daily basis.

As well-regarded as those two advocates are, I just don't see that factor adding a whole lot to this issue. Query if it will even make it to the Supremes, assuming the district court bonks it and the 9th affirms.

Either way there will be lots of pro bono hours racked up at those two firms.

Pacer Surfing With SFL!

Hi kids, in a continuing effort to bore me to tears, I have reviewed some recent civil case filings in our dainty little district, and found one that is mildly interesting.

Indeed, the pretrial conference is set before Judge Ungaro at 11:30 this morning. Good luck Bob Ader and Richard Tuschman.

The case is a FLSA denial of overtime compensation case involving drivers of shuttles for students at UM, FIU, and Barry University. Judge Ungaro recently denied Richard's second motion for summary judgment, thus clearing the path to trial (although back in July of 2008 the Court granted an earlier summary judgment motion that disposed of most of the claims).

At issue at the pretrial this morning is plaintiff's motion for clarification, which will affect how large a pool of drivers remain for the trial, for which the calendar call is July 1 (a great time to be having a trial, right?).

The issue is an esoteric one -- which standard did the Court adopt for determining whether the drivers are exempt under the motor carrier exception -- but the briefs on both sides are uniformly excellent.

While we wait for the results (let us know, Richard!), enjoy this polite and civil exchange between Christian Bale and Bill O'Reilly.

Third District Relies on Presumption of Valid Marriage

The Third District Court this week, in Cobo v. Sierralta, reversed a lower court's ruling that annulled a marriage in large part based on the Wife's failure to provide proof of a previous divorce in the face of the Husband's claims that the marriage was not valid. The Third District Court, in part, found that there is a presumption that the last marriage was valid, and as such that it was not the Wife's burden to prove that she had been divorced from a previous husband, but the Husband's obligation to prove that she had not been. In addition, the Court found that due to the lower tribunal's failure to enforce its temporary fee order, the Wife was denied adequate representation on the issue of the annulment.

Keep Your Cards And Letters Coming!

Well it sure is flattering to read some of your mail.

Good thing I can see that what might be perceived by a more thin-skinned civil law blogger as a vicious or derogatory insult is in fact just a playful, perhaps flirtatious effort at getting to know me better.

Note to a certain H&K associate who emailed me on Tuesday -- yes, yes, and if you think such a thing is feasible -- definitely yes.

And while many of you have some very interesting story ideas, all I can say to J.K. in Kendall is the NYT already beat me to it -- it turns out AT&T did in fact rig the Kris Allen "victory" on American Idol.

Don't worry -- the Times will get to that torture expose someday, I'm sure.

Meanwhile, I took one of you up and actually took the time to see what the 11th Circuit did recently and -- lo and behold -- they actually issued an interesting opinion today.

The case, Shirley Williams v. Mohawk Industries, Inc., deals with allegations by a class of employees that an employer systematically worked with temp hiring agencies to hire illegal laborers and thereby injured the rest of the employees by depressing their wages in violation of RICO.

That's good old-fashioned American ingenuity!

At issue was the district court's denial of class certification, which found there were not enough common issues, too many individual issues, that the plaintiffs were not typical, you get the picture.

The 11th reversed, and noted that -- unlike Title VII claims -- under Klay v. Humana, RICO claims are often susceptible to common proof. The court found there were common questions relating to whether the employer had violated GA or the federal RICO statute.

The court also found that the district court abused its discretion in holding that the plaintiffs' claims were not typical. The defendant had argued that the representative plaintiffs only worked at a few places, and therefore were not "typical" of the class as a whole:

Jones and Pelfrey allege that Mohawk conducted the affairs
of an enterprise by hiring illegal labor, which depressed the employees’ wages.
This claim is typical of the claims of other members of the class because the claims
are based on the same legal theory. Because the employees’ claim is that the hiring
of illegal aliens by Mohawk depressed the wages of all legal hourly workers
regardless of location, whether the two class representatives worked at a few
locations is irrelevant. Although this legal theory may ultimately not be sustained
by the evidence, it is typical of the class of which Jones and Pelfrey are
representative.

Relying on Klay, the 11th also found that in RICO cases the overriding common issues will usually establish predominance:

In Klay, we explained that “the common issues of fact [in a RICO action],
concerning the existence of a[n enterprise and] a pattern of racketeering activity . .
. are quite substantial. They would tend to predominate over all but the most
complex individual issues.” 382 F.3d at 1258–59. “It is primarily when there are
significant individualized questions going to liability that the need for
individualized assessments of damages is enough to preclude 23(b)(3)
certification.” Id. at 1260.

Finally, the 11th held that the manageability requirement is usually established where predominance has been found, and remanded to the district court for a renewed manageability analysis focusing on the plaintiffs' claims of common proof as to damages.

Ok kids, you can now bill 4.8 hours on "professional development -- review new 11th Circuit opinion on RICO" -- all for visiting this crappy blog!

Congrats John Shawde -- Don't Take Me Alive.

So this morning I broke out my Keytar and pretended to be a rock star again:

I'm a bookkeepers son
I don't want to shoot no one
Well I crossed my old man back in Oregon
Don't take me alive
Got a case of dynamite
I could hold out here all night
Yes I crossed my old man back in Oregon
Don't take me alive

It lasted for about 20 minutes or so and then I got a call from Jaime Bianchi.

Talk about a buzzkill.

Tell Jaime I'm on a conference call....

Can you hear the evil crowd
The lies and the laughter
I hear my inside
The mechanized hum of another world
Where no sun is shining
No red light flashing
Here in this darkness
I know what I've done
I know all at once who I am

Oh well, enough foolin' around, I better call Jaime back.

Well I've been remiss in congratulating a few of you for different changes and transitions.

Let's start with Alex A -- have fun fundraising (that s*%t's not easy)!

Then there's my buddy John Shawde, who has agreed to join RKRPEVN(!):

Joe Klock, firm partner and former chair of Steel Hector & Davis, LLP, had additional praise for Shawde: " Years ago, at Steel Hector, when we lost our bankruptcy lead lawyer, we canvassed judges, clients, and the bankruptcy bar, as we struggled to fill that key position. Jack Shawde was at the top of every list. We were able to persuade him to join us then, and I could not be more excited that he has chosen to join us today."

Shawde comes to the firm from the Miami office of Berger Singerman, one of the most respected creditors' rights firm in the state. RKRPEVN partner Gabe Nieto worked with him both there and at Steel Hector.

Congrats John!

But Joe, you can say his name, it was a long time ago and he died tragically anyway forchrissakes.

And why not add John as a named partner -- what's one more letter?

3d DCA Watch -- Empathetic, Intellectually Mediocre Latina Judges Edition

Hi kids -- are you sick to death yet of all the hacktacular Sotomayor coverage?

Between Sotomayor and Jon and Kate all day, everyday, I'm about ready to pull a Papa Hemingway myself if this doesn't end soon.

Have we returned to 2005 and entered Stupidville again?

For example, did you know that if you graduated summa from Princeton and were EIC of the Yale Law Review, that makes you "intellectually mediocre"?

Employing the laziest of stereotypes, it's a proven fact that if you are Hispanic and female you are by definition "temperamental and excitable" and possibly "Che Guevara in robes."

Also, although the Obama election proved that our nation has moved past identity politics and we are living in a post-racial world, the only reason Sotomayor was picked is because of affirmative action and also because Obama thinks like a 21-year-old Hispanic girl.

Can someone explain how being a state prosecutor, corporate attorney, and Bush I appointee (with votes from Jesse Helms, Rick Santorum, Bill Frist and others) makes you, as the Herald described today in a front page news article, an "unabashed liberal"?

Shhh, don't tell the WSJ, who had this to say of her business decisions:

The judge has favored corporate defendants in suits that test when cases can be brought as class actions. Judges often must determine whether plaintiffs' claims should be pre-empted by more defense-friendly federal and international laws.

"There is no reason for the business community to be concerned" about Judge Sotomayor, said Lauren Rosenblum Goldman, a partner at Mayer Brown LLP who has represented businesses including Wachovia Corp. and Dow Chemical Co.

In King v. American Airlines Inc., Judge Sotomayor ruled against an African-American couple who claimed they were bumped from a flight because of their race. The judge concluded their case was pre-empted by international law that governs air travel. "We urged a different interpretation, but her decision was in conformity with what other courts were doing," said Robert Isseks, a New York attorney who represented the plaintiffs. "We were paddling upstream."

In 2006, the judge was part of a Second Circuit panel that ruled investors couldn't proceed with a class-action suit accusing Wall Street banks of fraudulently pricing initial public offerings. The ruling negated settlements that would have yielded investors more than $1 billion. "That ruling demonstrated that in securities litigation, she is in the judicial mainstream," said Barry Ostrager, a partner at Simpson Thacher LLP who represented a unit of J.P. Morgan Chase & Co. in the matter.

Simpson Thacher? Mayer Brown? What do those pikers know about commercial litigation anyhow?

Oh hail I can't take it anymore.

Let's wade into the relative peace and security of our resplendently robed ones to the south, who swill coffee with great empathy from their concrete bunker of instajustice, and who dispense PCAs like lumps of coal on a cold Christmas morning, yes it's our patented always exciting, never intellectually mediocre 3d DCA Watch:

Diaz-Hernandez v. State Farm:

Hey, the 3d makes actual law!

Dear State Farm, requiring the insured to also sue the uninsured motorist in addition to the insurer is kind of a jerk move that contravenes public policy of the UM statute and is unenforceable:

[T]he purpose of the UM coverage is to protect the injured motorist, not to benefit the UM carrier or the uninsured motorist. See also Varro v. Federated Mut. Ins. Co., 854 So. 2d 726 (Fla. 2d DCA 2003). If State Farm is in doubt as to whose negligence caused the action, it may call the uninsured motorist as a witness. If State Farm intends to seek subrogation against the uninsured motorist, it may bring the uninsured motorist into the lawsuit. Placing the burden upon the Insured by making it a contractual obligation benefits State Farm, not the Insured. We, therefore, conclude that the provision is against the public policy of the UM statute, section 627.727, and therefore invalid.

Darn activist judges!

Lonestar v. Leview-Boymelgreen:

Who knew you are not supposed to consider affirmative defenses at the motion to dismiss stage:

A motion to dismiss under rule 1.140(b) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial.

State court, what a gas.

Kosoy Kendall v. Los Latinos:

So I guess if you're a tenant facing eviction you have to put a month's rent into the registry of the court. If you don't the statute says you can get an ex parte immediate default.

But here Judge Cohen Lando refused, leading Judge Schwartz in muted tones to patiently observe:

Because the trial court refused, after an adversarial hearing which was itself unauthorized, to issue the writ and, notwithstanding such wholly irrelevant facts as that the payment was subsequently tendered, see Main St. Corp., 947 So. 2d at 492, we grant the present application for mandamus and order that a writ of possession issue forthwith.

When is something not just "irrelevant," but "wholly irrelevant"?

When Judge Schwartz says so!

How's that for empathy?

Ricci And Hemingway, Attorneys At Law?

Did anyone take a look at the inside first page of the new June Florida Bar Journal?

There's none other than Ed Ricci, standing shoulder to shoulder and arm-in-arm with Ernest Hemingway, someone who I thought at one point was in fact dead (not you, Ed).

Note that Ed and Big Ernie's signatures appear right next to the photograph, thus certifying its authenticity, or seal of approval, or that the big-game hunt is still on, I'm not sure.

Now that is some cool marketing. You got the rights from the Hemingway family and all, just to run an Bar-approved ad depicting you right next to Papa in the FBJ? Wow.

In fact, Ed's extraordinary ad has inspired me, and I have submitted to the Bar my own version for their approval, in which I am struggling to prop up a hairy, drunk, vomit-ridden, out of his head Jim Morrison.

The quote -- "SFL LAW -- NO ONE HERE GETS OUT ALIVE."

I kinda like it -- what do you think?

Bill McCollum's (Non) Journey Through the Past

It's dark and rainy and everybody seems to be working.

Bah humbug.

Oh this is exciting -- all you broker/dealer securities litigators may get a boost from this proposed FINRA revision:

The Financial Industry Regulatory Authority, or Finra, is requesting comment on whether it should file a rule proposal with the Securities and Exchange Commission that could expand existing suitability obligations for brokers. They would all encompass recommendations of products, services and strategies regardless of whether they involve securities.

The proposal is part of Finra's consolidation of rulebooks from its predecessor organizations, the National Association of Securities Dealers and the member regulation functions of the New York Stock Exchange.

Investor attorneys say arbitration panels often interpret suitability rules to apply only to the purchase, sale or exchange of securities. That leaves many investors without recourse when they follow advice, such as a "hold" recommendation, in which no transaction occurs.

William Jacobson, director of the securities law clinic at Cornell University Law School, says the new rules, if adopted, would be "huge" for investors. "It would clearly encompass asset allocation and issues that go beyond a specific transaction," he said.

Crank up the advertising boys (you know who you are).

In other news, when is Neil Young going to re-release his film and soundtrack recording of this long-lost legendary project?

Who knows, but Bill McCollum for one will not be entering the WABAC machine:

A financial storm was beginning to brew. In May 2000, McCollum was vice chairman of the banking committee and his panel held day-long hearings into mortgage issues, including rising defaults rates and subprime lending practices.

But hours of testimony resulted in little action. ''It was very hard to convince anyone it was epidemic,'' said Cathy Lesser Mansfield, a Drake University law professor who testified before the committee.

McCollum could not recall the details, but said there was nowhere near the concern then as there has been in recent years and linking the two would be out of context.

''It's great to look back in 40/40 hindsight,'' McCollum said.

It is great, isn't it -- it's called trying to understand what happened so it doesn't happen again.

But seriously -- the panel you vice-chaired held day-long hearings on mortgage issues but you "could not recall the details"?

Any? Not one? How about what you had for lunch that day (maybe ask Senator Graham)?

Oh well -- your Congress at work.

Law Updates for May 15, 2009

Ingmire, Jr. 34 FLW 894, 2nd DCA, excess of plea agreement. Error to impose 15 year sentence based on def's willful failure to appear in violation of plea agreement where the state presented no evidence that the def's actions were willful, relevant evidence without the def's testimony was that he erred and compounded the error through well-intended but improper action

L.P. 34 FLW 909. 3rd DCA, search and seizure. Ofc stopped vehicle in which juv was a passenger after 2:00 a.m. and determined he was violating the curfew. After he received his age he detained him and ordered him out of the vehicle told him to put his hands on the car and stay put. No reasonable grounds to believe he was in violation of the curfew ordinance where the ofc did not ascertain juvenile's reason for being in public after curfew hours. No pc for curfew violation prior to juv admitting he had marijuana on him. Not sufficiently attenuated from the illegal seizure

Panter. 34 FLW 921, 1st DCA, ofc who observed a hand to hand transaction of an unknown nature between the occupants of a van and a person who exited a house known for narcotics sales did not have reasonable suspicion of criminal activity to justify investigatory stop of occupants of the van. Denied motion to suppress where ofc had detained the def and another occupant of the van, informed that a K-9 unit would be brought there, and K-9 dog alerted on the van



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

Oh Hail It's Tuesday.

Hi online addicts!

Welcome to your work week, folks.

Well I hope you all had a restful and peaceful Memorial Day weekend, and at least paused for a moment to honor the many who have sacrificed so much in defense of our country.

Somehow I windsurfed myself all the way out to Elliott Key yesterday, so I apologize for not getting a post up to mark the holiday. And thank you US Coast Guard, I owe you one.

I see everyone is buzzing about Obama's Supreme Court pick. Is it just me or is there something slightly anti-climactic about the selection at this point in the game?

I happen to like the jurisprudence out of the 2d Circuit generally, at least on civil matters. They seem to understand antitrust law, business litigation, and damages issues. Lots of good lawyers litigating the nation's key business disputes in a fair-minded, intelligent forum.

Most of the criticism from the right so far has focused on Judge Sotomayor's PCA on a white firefighter discrimination case -- you can read Ed Whelan's gloom and doom report on the judge's transgressions here.

To me that's a big yawn -- we know appellate courts do this all the time to preclude further appeals when the issues are not properly framed or the case not the right vehicle to adjudicate certain open legal questions. If that's the best they have, she seems like a lock.

Speaking of appellate courts, I found this article pretty interesting:

A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side would win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Judge Roberts had argued 39 cases in the Supreme Court, and he was considered one of the leading appellate advocates of his generation. He sounded both fascinated and a little deflated by the results of his experiment. “The secret to successful advocacy,” he said playfully, “is simply to get the court to ask your opponent more questions.”

This certainly comports with my anecdotal experiences with a "hot" bench. When you walk up to the podium and can barely get your name out before the questions begin, you stand a pretty good chance of losing.

Sarah, btw, is now an associate at SSD in Palm Beach.

Boy, to have your law review article quoted in the Times and by the Chief Justice -- congrats Sarah!

Of course, I thought my hot-button law review article -- analyzing the increasingly flustered and bewildered facial expressions of Harry Morgan's night court judge in Holiday Affair -- would be nearly as influential, but alas time (and Westlaw citations) have not been so kind.

Darn eggheads!

Cranky Old Jew Turns 68!

Happy B-Day, Bobby D.

You did good.

SFL Friday -- Wet Hot American Weekend.

Well it's Memorial Day weekend and I am sure many of you have already left your offices for parts unknown, to the east, west, south and north somewhat, as someone famous once said.

But it's almost summer, so that means movies, right?

Like the Star Trek reboot, which in my view captured the tone, humor, and humanity of the original while injecting fresh blood and some real vitality back into the franchise.

To paraphrase Spock -- live long and prosper, Schlomo.

Still, let's hope the weather clears so we can have a little fun outside.

What -- would you rather camp inside Magistrate Judge Brown's courtroom like those Akerman attorneys John Pacenti wrote about?

Isn't this line classic Judge Brown:

The dispute spilled out at an April 20 hearing — the third on the discovery issue in about a month — when Brown found himself parenting the two sides, warning the attorneys that he was tired of wasting time in the case.

“It’s not like you are paying rent for this courtroom,” the magistrate said.

He said he had little sympathy for the defendants, but “I’m not throwing them to the wolves here either.” He also pointedly criticized the government, saying, “I think the SEC is far more interested in discovery than they are in bringing this case to a conclusion.”

That whole mess is one big triple-oy.

Plus, FSU has no hope next year!

(Sorry, judge.)

Anyways, I'm heading out early for some rainy-day windsurfing -- you all know I love a little moderate chop.

And I'll probably be paying a visit to my masseuse, gaining some sympathy weight, carefully watching someone special eat lots of chocolate, and, as always, putting my hands on something especially delicious -- it is a holiday weekend, after all.

I'll probably be around on Monday, so see you then!

PACER Surfing With SFL!

You guys ever PACER surf?

You know, go onto PACER and plug in some attorney's name or law firm or some defendant to see what they're up to here in the Southern District?

No, me neither.

But just for kicks I plugged in two of my favorite South Florida attorneys, Chris Carver and Hilarie Bass.

Chris is involved in a mess of a maritime case before Judge Moreno and the fastest Mag in the West, Judge Torres, In Re: MS "Madeleine" Schiffahrtsgesellschaft mbH & Co. KG, Reederei Alnwick Harmstorf & Co. GmbH & Co. KG and Bangor Castle Shipping Company Limited.

It's pretty exciting stuff, with Fowler White, Shutts & Bowen, and a bunch of local maritime lawyer-types involved.

I would summarize the litigation, but the last few times I tried I fell asleep at the keyboard and had to be revived by a double-cafecito and repeat viewings of "10."

You guys are on your own on that one.

Hilarie has an interesting piece of litigation involving the owner of Mykonos Restaurant who is suing the Baltimore City Paper for defamation. My friend Miguel de la O's partner Joel Magolnick is representing the plaintiff.

Ok Joel, you're my friend too.

Reading the complaint and also the pending motion to dismiss for lack of venue that Hilarie filed, it seems that the paper allegedly got the owner of the restaurant confused with a Baltimore federal fugitive that also happens to have the same name as Joel's client. After getting a letter, the City Paper allegedly ran an apology and retraction:

On September 24, 2008, City Paper posted an online retraction, stating that it “regrets the confusion and apologizes to [Plaintiff] for any troubles they've had as a result of the stories.” (Compl., Exh. C.) On October 8, 2008, City Paper re-ran the August 27, 2008 article, prominently prefaced with a “Correction,” clarifying that there is no connection between Plaintiff and “Crazy John” Kafouros.

Joel's complaint, of course, lists a number of other problems and alleged errors with the story.

Plaintiff filed in state court, defendants removed, and they are moving to dismiss or transfer based on improper venue.

The interesting issue is whether online dissemination of a story can subject you to long-arm jurisdiction somewhere else where the article is read. Hilarie's analysis focuses on Young v. New Haven Advocate, 315 F. 3d 256 (4th Cir. 2002), where the court established an "effects" test to determine where the "primary effects of the defamatory statements" were felt.

It looks like GT associate D. Porpoise Evans wrote the brief and did a fine job.

Joel just got an enlargement from Judge Gold so his response brief has not yet been filed.

Meanwhile, all I can say is the plaintiff runs a great restaurant and I hope there is some in-kind edible payment involved for Joel's legal efforts.

Rachlin Merges; Older Male Judges Discuss What Women Attorneys Are Wearing

Many of us have hired these guys as experts over the years, and I see the firm is merging and changing its name:

South Florida's eighth-largest accounting firm, Rachlin LLP, is merging with Marcum & Kliegman LLP, the largest accounting firm on New York’s Long Island.

Newsletter Inside Public Accounting ranked Marcum & Kliegman the nation's 23rd-largest accounting firm for 2008, with net revenue of $123.26 million. It had a 28 percent growth rate.

Miami-based Rachlin ranked 81st, with $36 million in net revenue and a 3 percent growth rate.

After the June 1 merger, the combined firm will be known as Marcum in the Northeast, and Rachlin will change its name to MarcumRachlin, a division of Marcum LLP.

Laurie Holtz, Barry Mukamal, all good guys who have helped many of us out on plenty of occasions.

Congrats, fellas!

Switching gears but I couldn't hold this for Friday, what do you make of this discussion at a recent 7th Circuit Bar Association meeting:

Noting that there weren't many women in the audience to hear her message, Lefkow suggested that lawyers address the "delicate issue" with female colleagues at their firms.

As it turned out, one of the male judges on the dais with her, and the male lawyers in the audience at the Indianapolis meeting, had plenty to say right away about the issue. It had been bothering them, too, perhaps in a slightly different way.

Women come into court wearing "skirts so short that there's no way they can sit down and blouses so short there's no way the judges wouldn't look," said Judge Michael McCuskey, chief judge of the U.S. District Court for the Central District of Illinois and a panel member.

Murmuring in the audience quickly rose into loud comments and laughter, with one female voice calling for someone to help save McCuskey from himself. Bankruptcy Judge Benjamin Goldgar, who presides in the Northern District of Illinois, came to his rescue from the audience, saying that McCuskey shouldn't be made to keep quiet about the matter because he too considers the issue "a huge problem." Sometimes it's so difficult that Goldgar said he wishes he could tell the female lawyer standing before him: "I'd really like to pay attention to your argument."

"You don't dress in court as if it's Saturday night and you're going out to a party," said Goldgar from the audience. "Dress as a serious person who takes the court seriously."

First of all, I've been to plenty of bar lunches and judicial events, and I've never heard talk like that at our conferences here in South Florida. Step it up, people!

Second, how many male lawyers do you know who have crappy suits, mismatched ties, or sometimes barely put on a jacket and scruffy shoes to shuffle down to Flagler? Yet these folks are fashion arbiters for women attorneys?

I'd like to pay attention to your argument too, but honestly you look like a total schlub who just woke up from a weekend bender.

And we all know the 7th Circuit has an oddball bench, but come on, guys.

A women is entitled to include whatever elements of their femininity they elect to incorporate into their overall professional appearance. Or not.

Same is true for a guy.

Of course some outfits are inappropriate in a professional context, no matter who is wearing it.

But a hint of our masculinity or femininity has long been a part of dressing for success.

Don't fear it -- embrace it.

Overworked And Underpaid Thursday.

Ever come into the office and just get hacked off?

No particular reason, but you feel like all the crap -- cases, clients, colleagues, judges, opposing counsel, upcoming hearings, trips etc. -- builds up and you need an outlet for the hostility and aggression.

No, me neither.

So let's see, those into the craft of law can watch the Pleus v. Crist oral argument on the 5th DCA JNC dispute, where the great bow-tied one, Sandy D'Alemberte, delivers a classic and tangles (intellectually) with Justices Pariente, Polston, Canady and Quince. He even references Joseph Heller!

Preemption junkies (hi federal law clerks!) may enjoy this new change in preemption policy from The White House:

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Federalism -- what a concept.

Aren't you glad you voted for him?

Oh oh -- our friends at the now-closed The Forge write in to the Herald to defend the late-night email firing without notice or severance of their staff:

For the past 40 years of business we have accepted the industry standard in laying off employees. In fact, almost all past employees leaving our employ have never given us notice.

It works both ways. Because of the industry's standard practices, we don't expect notice and our employees don't expect notice either.

I have not received one single complaint from an employee other than to wish us luck and speed in reopening and to thank us for the financial security we have always provided them.

Until now. So you offered not one ounce more than what industry practice requires -- how nice.

Does industry practice require that you fire your staff by email, and offer no severance? That's some industry.

Also, has it occurred to you that no one is complaining to your face because, in this bleak job market, some are hopeful you may rehire them after the purported $5 million renovation?

Speaking of firings, my old friend Normie Kent goes to bat for the always-embattled Neil Rogers:

''It's a mess that WQAM has to deal with, and basically they're just giving Neil three days off with pay because of their own snafu,'' said Norman Kent, the attorney.

Ironically, Rogers has mostly quit taking listeners' calls during his midday show because too many pranksters were unleashing long, obscenity-ridden tirades that had to be bleeped out. Instead, he encourages them to send e-mail that he reads on the air.

It was one of those e-mails, complaining about WQAM's dismissal of Rogers' longtime producer last week, that got him into trouble.

Rogers was reciting it aloud, relishing the insults it heaped on WQAM general manager Joe Bell, when he inadvertently included a line that said, ``[Bleep] Joe Bell.''

''Neil immediately hit the dump button, the button you use to cut out stuff during the seven-second delay,'' Kent said. ``But WQAM is moving into new studios, and Neil's dump button wasn't connected yet.''

They fired Jorge?

That sucks. I sure hope he received exactly what the industry standard requires.

3d DCA Watch -- It's A Carnival Out There.

Well, I've walked these streets
in a spectacle of wealth and poverty
in the diamond markets
the scarlet welcome carpet
that they just rolled out for me

And I've walked these streets
in the mad house asylum
they can be
where a wild eyed misfit prophet
on a traffic island stopped
and he raved of saving me

Oh trial courts, why do you torture the 3d DCA so?

Whenever I edit briefs by an associate, I am reminded of that great line from V.S. Naipaul's A House For Mr. Biswas, when Mr. Burnett, the editor of the Trinidad Sentinel, gives out advice every writer needs but rarely hears:

"'Considerably' is a big word meaning 'very,' which is a pointless word any way. And look. 'Several' has seven letters. 'Many' has only four and oddly enough has exactly the same meaning."

The 3d today was a carnival, and even Natalie's beautiful voice and provocative dancing cannot save me from what my hypnotized, mesmerized eyes have seen:

Nack Holdings v. Kalb:

Raoul Cantero in da' house! (h/t Michael Steele).

Sheesh, you'd have to be a rocket scientist or Judge Salter to make heads or tails of these facts, but the Judge breaks it all down with his usual flair and patience:

In a complex series of loan and real estate transactions worthy of analysis by Professor Boyer or inclusion in a law school final exam, we conclude that the appellee and its predecessors in interest attempted to circumvent a controlling Florida statute.

The Judge even name checks the late UM Professor Ralph Boyer! See, I told you this guy is a mensch.

The opinion, though, is for real estate fetishists only (I know a few of you are out there).

Granada Insurance v. Triangle Fire, Inc.:

Triangle Fire? That's really the name of your company? What was it that Justice Souter was saying about teaching history in our schools?

Oh well, it's Judge Schwartz again, this time quashing an order by Judge Zabel that would have allowed the plaintiff to depose the King of Spain, excuse me, the President of Granada Insurance to determine why he won't just pay the plaintiff's claim:

We quash the order. Our decision is based upon the universally applied rule that discovery which concerns only potential issues of bad faith or other purported improprieties in defending the claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage.

Judge, respectfully, it's not a "universally applied rule" -- just ask Judge Zabel!

Plus, go with "universal rule" or "rule." Just a suggestion.

Oops, here comes another universally applied rule that is routinely ignored:

Downright Engineering v. Overland Carriers:

Repeat after me, you can't just appeal an order granting summary judgment:

Because “the law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review,” we agree with Overland’s contention and dismiss the appeal as premature.

State court -- oy.

I told you, it's a carnival out there.

When Is Trump Tower Not Trump Tower?

When The Donald says it's not:

Thirty buyers of Trump International units at 551 N. Fort Lauderdale Beach Blvd. are suing the developers and Trump for allegedly misleading them into thinking the TV star's participation was a sure thing. Though sales contracts identify the project as the SB Fort Lauderdale Hotel & Condominium and state that Trump can withdraw from the licensing deal, the suit claims that marketing materials suggested Trump was on board as a developer.

''Everybody thought they were buying into Trump Tower,'' said Joseph Altschul, the Fort Lauderdale lawyer who filed the suit in Broward County Circuit Court.

The suit claims plaintiffs ''paid a premium for a condominium unit with the Trump name purportedly attached to it,'' reads the suit filed in Broward County Circuit Court. The project's website described it Thursday as ``a signature development by Donald J. Trump.''

This case again raises the issue, so carefully analyzed by Judge Seitz, of whether consumers can be misled by the overall impression and strength of an expensive condo marketing campaign as against disclaimers and exculpatory language inserted (buried?) some place in the contract docs.

The short answer: Joe, don't put a lot of money in this one.

When "mere multimillionaire" The Donald pulls out, maybe you should too.

If A Tree Falls In The Forest......

By Guest Blogger:

George Berkeley was a smart man, or he took a lot of acid. He opined about objects ceasing to exist, once there was nobody around to perceive them. Or to give a crap.

Which is sort of like what is happening to Paris Hilton.

But like botox or saline, Chief Judge Moreno has intervened to delay, albeit briefly, the inevitable, ruling that there are enough issues in dispute for a trial to begin on June 8:

The judge says one issue is whether Hilton was actually too busy or decided not to promote "Pledge This!" because she hated the movie. Another issue is whether more promotion would have mattered.

Funny guy, our Chief.

I never understood the whole Paris thing. She's...imprecise.

You can see the Judge's order (with your fancy PACER account) here.

New Local Rule -- All South Florida Lawyers Must Have Something To Do With Chinese Drywall.

If I hear the words "Chinese Drywall" one more time I will pull a Carver, or a Shumie, or something and heads will roll.

For the love of God please don't send me things like this:

Attorney C. David Durkee, partner with the Florida law firm Roberts & Durkee, announced the scheduling of a town hall meeting in Lake Worth, Fla., to discuss possible toxic Chinese drywall in the community as well as other communities throughout Florida. Durkee, who is filing a series of lawsuits on behalf of homeowners who say the Chinese-made drywall is causing health issues and damaging their homes and belongings, will answer questions at 7 p.m. Tuesday, May 19, at the Holiday Inn West Palm Beach - Turnpike, 7859 Lake Worth Road, Lake Worth, Fla., 33467. The event is free and open to the public. Attorney Wayne S. Kreger, partner with the national law firm Milstein, Adelman & Kreger, based in Santa Monica, Calif., will help lead the town meeting. Kreger is handling California class-action suits concerning toxic Chinese drywall and collaborating with Durkee and other attorneys nationwide.

Unless "Chinese Drywall" is some euphemism for "feminine tannins" (which incidentally I also hope is a euphemism) keep me the hail away from it, and the litigation too.

Have fun Judge Moore and the two hundred or so lawyers involved in this monstrosity!

Big Money!

Since I see everyone and David O. Markus is commenting on Jeffrey Toobin's profile of Chief Justice Roberts, I might as well put my two crappy cents in.

For us civil litigators, here's the part I found interesting:

In one respect, Roberts’s series of prestigious jobs all amounted to doing the same thing for more than twenty years—reading and writing appellate briefs and, later, appellate decisions. During the heart of his career, Roberts’s circle of professional peers consisted entirely of other wealthy and accomplished lawyers.

Hey, there's nothing wrong with that!

But here's the larger point:

In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals.

More than a substantial portion and more than regular corporate clients -- if you could afford to hire Hogan & Hartson in DC, you are a Fortune 100 company with a serious legal problem.

So in my view Roberts' experience as a lawyer has been exposure to a high-end slice of the overall world of civil litigation, and from a fairly narrow perspective -- that of being in a position to bill substantial hours working for a well-heeled corporate defendant in high-stakes civil litigation. And this is important and valuable.

Still, Roberts has never worked on a contingency case, never represented a poor person who has been victimized, never sued a corporation for a wrongful act, and never had to run a law firm.

Again, there's nothing wrong with that -- many of our better judges had far more limited experience and skill sets than Justice Roberts.

But you can see where Roberts came from in his current interest in antitrust and securities matters, and with rulings like Twombley it's not hard to see where Roberts' heart lies. Would his views be different if he was exposed to a greater variety of civil law perspectives?

Looking over the short list of potential Obama nominees, I don't see anyone on deck who could counterbalance the BigLaw corporate orientation of the Chief Justice in civil matters, but then no one seems to care about civil litigation when it comes to Supreme Court nominees anyways.

Stuart Slotnick Wraps Up Another One.

A commenter points us once again to Buchanan Ingersoll litigator Stuart Slotnick.

You may recall Stuart planned to make Woody's relationship with Soon-Yi the focus of his client American Apparel's defense of Woody's $10 million privacy infringement claim.

When the judge properly excluded that proposed testimony, Stuart suddenly wrapped his client around the First Amendment, which actually would have been an interesting issue to see litigated.

(I don't see the satiric element myself, but it still is a more credible defense than threatening to drag Woody's name through the mud).

But alas, Stuart's client gave up and settled for $5 million:

Standing with his lawyers outside a Manhattan federal court on Monday, Mr. Allen said, “I am told the settlement of five million dollars I am being paid is the largest reported amount ever paid under the New York right to privacy law,” according to Reuters.

Always good to be involved in a record-breaking case, I always say.

Is Shareef Malnick Full of Crap?

Well that was a fast weekend, wasn't it?

Mine was uneventful, filled as it always is with windsurfing, Bolero, amateur photography, certain mixed drinks and of course careful study of the Book of Proverbs.

Boy, that King Solomon sure was a shmartie, huh? For example, he said things that even apply to the practice of law, such as:

Better is the poor that walketh in his integrity, than he that is perverse in his lips, and is a fool.

Be honest in your dealings with others.

Or this:

A good name is rather to be chosen than great riches, and loving favour rather than silver and gold.

Your integrity is worth more than money.

He that walketh with wise men shall be wise: but a companion of fools shall be destroyed.

You are judged by the company (and partners) you keep.

I was thinking about King Solomon's writings as I saw Mark Cheskin discussing how to lay people off in today's paper:

Advance notice certainly is the kinder way to fire, said Mark Cheskin, an employment lawyer with Hogan and Hartson in Miami, but managers need to balance that against other considerations.

For example, will the laid-off workers remain productive knowing their employment comes to an end in a few weeks or months? Could they use the time to steal customers away for a new employer?

''In most instances, making the day of termination the last day of employment in the workplace is a best practice,'' Cheskin said.

These are difficult issues, and I think there are practical reasons why Mark's point is valid.

Still, I found Shareef Malnick's justification for his firing of The Forge staff to be less than convincing:

When Shareef Malnik decided to close his landmark Miami Beach restaurant for renovations, he wanted to be sure service remained top-notch until the very last customer was served.

So he said nothing to most of the employees who worked an overnight party in late April. After the last dish was cleared, Malnik e-mailed the restaurant's 100 employees with the news that The Forge would be closing for six months and they would no longer have jobs.

Most received no severance.

So he (1) didn't tell people to start looking for a job; (2) fired them suddenly by late-night email; and (3) didn't pay severance to most of his staff.

But he did it all for his customers!

Is there something wrong with this story? According to the great columnist Joan Fleischman, Malnick plans to sink $3 to $5 million over the next few months in renovating the restaurant.

Is there anyone else in town spending that kind of money on a restaurant? Who would finance that right now?

Also, at the same time he shut down his restaurant, he is also selling his $10 million mansion.

Is this the right time to sell your house?

I can understand doing one or the other, but both together (and no severance!) suggests there may be more to this story than Malnick is letting on.

Marco Rubio Vows to Be An Unpopular Leader Who Will Emancipate Us From Medicare.

Oh 20 percenters, how I love you so.

Especially the South Florida variety, where the rhetoric skews both stupid and comic, often at the same time!

Consider our lawyer friend Marco Rubio, who is challenging the sunny centrist Charlie Crist.

According to one of Rubio's supporters, Charlie hasn't "manned up."

I wonder what that could be about?

And Marco is a student of history, and therefore can say this with assurance:

''I can't find a great leader in human history that was popular, and what that tells me is leadership and popularity is not the same thing,''

Exactly -- FDR won four straight Presidential elections because everyone hated him! Plus he barely showed any leadership through the Depression or the worst human conflict in world history.

The best part is Marco's plan to emancipate us from the slavery of a social safety net, just like his hero Honest Abe:

''Marco is a student of history,'' Scott said, ''and he made a connection between the emancipation of the slaves under Lincoln and the emancipation of our current populace by undoing the things Lyndon Johnson had done as part of the Great Society programs,'' which included a host of welfare and anti-poverty programs, as well as Medicare and Medicaid.

I agree Marco -- any student of history knows slavery and Medicare are pretty much the same thing.

SFL Friday -- Open Up My Heart And Look Inside.

Hi folks, well as usual Rumpy is correct -- today is in fact Friday. But that's good, right?

Maybe it's all that talk earlier about "feminine tannins," but I've been in a romantic mood all day -- I hope you are too.

Boy, you guys never send me enough juicy stuff about local lawyers, law firms, or cases, but you all love to send me links for a Friday afternoon post.

Times are tough, people -- but my friend Mr. Guest Blogger notes that in these trying times there are some stepping up to help -- Victoria's Secret, for one.

And Pfizer, who will be handing out free Viagra to the unemployed:

"Everybody knows now a neighbor, a relative who has lost their job and is losing their insurance. People are definitely hurting out there," Dr. Jorge Puente, Pfizer's head of pharmaceuticals, told The Associated Press.

"Our aim is to help people bridge this point."

As Eric Idle might put it, nudge nudge, say no more!

Did you see that four Miami Chrysler dealerships are scheduled to close?

Not so fast -- they have hired SSD:

A legal showdown is about to begin between the nearly 800 Chrysler dealers that were ordered shut down on May 14 and the Big Three auto giant that ordered the closures.

In a court filing, Chrysler Corp. asked U.S. Bankruptcy Judge Arthur Gonzalez to reject dealer agreements for 789 dealers nationwide — roughly 25% of its 3,200 dealers — in a effort "to conserve cash and pursue transactions that maximize value." The dealerships, which are set to close June 9, have until May 26 to appeal the motion. A hearing is set for June 3.

The announcement, meanwhile, revved up Squire, Sanders & Dempsey, which is representing a coalition of rejected dealers and has scheduled a meeting with President Barack Obama's auto task force next week to ask for federal intervention, including financial assistance. The law firm claims that the closures are unlawful and that roughly 100,000 employees stand to lose their jobs. It vows to litigate if franchise rights are ignored.

"Our hope is to resolve this without the need for extensive litigation to make sure that dealers are not disproportionately injured. However, we are fully prepared, as early as next week, to begin the litigation process because we can't sit idly by and have these dealers' lives ruined without the opportunity to raise the issues with the bankruptcy court in New York," said Stephen D. Lerner, a partner in the Cincinnati and New York offices of Squire Sanders who is representing the dealerships.

Good luck guys, but make sure you clear conflicts first!

And this is a shocker -- turns out the Administration approved torture techniques long before Judge Bybee authored that ultra-crappy August 2002 memo.

You'd never know from reading it, that's for sure.

Well I have a song in my head and love in my heart, so I'm heading out for some early windsurfing before the rains come.

Over the weekend I hope to visit my favorite theme park, work on improving my emotional intelligence and, like I do every weekend, put my hands on something interesting.

Have a great weekend everyone!

Mark Tobin Is Proud of His Bottles.

Hi folks, lots of fun stories floating around today.

First, as anyone working at a big firm knows, conflicts checks are a real hassle.

Just ask my buddy and excellent lawyer extraordinare Pedro Martinez-Fraga:

Martinez-Fraga asked to withdraw as counsel for the Chilean government in all four of the Miami cases after the conflict issue was raised by Berger Singerman attorneys Mitchell Berger of Fort Lauderdale and James Cunningham Jr. of Miami. They alleged in an April 27 response that the presence of another Squire Sanders attorney on Espirito Santo’s board caused a conflict. Another conflict stems from PNC’s status as a Squire Sanders client, attorneys familiar with the case say.

Espirito Santo noted Squire Sanders of counsel Eric Buermann is a senior director on Espirito Santo’s board, and a bank court filing said the Squire Sanders team initially refused to withdraw from the case.

Berger and Cunningham also wrote that Squire Sanders attorneys told them Buermann said there was no reason to withdraw.

“Squire Sanders & Dempsey indicated to the bank’s counsel that based on the facts known by Mr. Buermann, there was no reason for it to withdraw. The only way that the law firm could have reached this conclusion was by interviewing Mr. Buermann about his knowledge of the facts of the case. The bank pointed out that any such interview is a violation of ... rules of professional conduct,” Espirito Santo said in a court filing.

You know, this kind of stuff never used to happen at Greenberg.

But enough about pesky conflicts issues, let's discuss bottles and the lawyers who put delicious things in them:

Prominent Miami Lawyer Mark Tobin and his wife Christine Ferrari Tobin, recently introduced their new wine brand Mattebella, an old world style wine from their Vineyard in Long Island, New York, to the South Florida market.

"After 4 years of nurturing and aging, we are finally able to introduce our wines to the market," said Tobin, a partner in the private property rights law firm of Brigham Moore, LLP. "We are extremely proud of what is in our bottles."

You should be. And look at what's in them:

Aged only in the finest French Oak, the wine enjoys feminine tannins with hints of coffee and chocolate flavors.

Hey, I also enjoy feminine tannins with hints of coffee and chocolate flavors!

In fact I'm getting a warm fuzzy feeling just repeating the phrase "feminine tannins with hints of coffee and chocolate flavors."

Congrats Mark, you can deliver a case to my friend John the shoeshine guy over at the courthouse on Flagler, he'll get it to me pronto.

In The 1920s, Could You "Text Message" The Ice Deliveryman?

I know how much Judge Silverman loves to preserve and celebrate our heritage, particularly as it relates to the courts and our rich South Florida judicial history.

So he would know for sure, but I'm fairly certain that in the old days you could not text message your boss from the witness stand about your testimony:

While the judge and attorneys conferred, a courtroom spectator passed a note to a defense attorney saying the witness, Sky Development chief operating officer Gavin Sussman, appeared to be text-messaging Sky chief executive Yizhak Toledano at the plaintiff table.

Vistaview attorney William Petros, a partner at Coral Gables-based Petros & Elegant, said the incident occurred while the judge and lawyers for both sides met at the bench on the third day of trial.

Petros asked for another sidebar and relayed his suspicions. The judge asked Sussman if he’d been text-messaging, and he admitted he and Toledano texted twice about Sussman’s testimony, Petros said.

One message from Toledano to Sussman said: “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner.” It wasn’t clear from a transcript who sent the second text saying, “We maybe got this document after Sept. 7 when the bank discovered the problem.”

Petros asked for a mistrial, which the judge granted.

Before that, Silverman had engaged in a heated exchange with Toledano. “Let me be really frank about this,” the judge said. “I never had this happen before. This is completely outrageous, absolutely outrageous.” Toledano responded, “It was on a break.” Silverman shot back: “It doesn’t matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,” Toledano said, “I’m sorry, after we took the break, it’s not in the middle.”

The judge explained himself again.

“It’s a problem on your communicating with the witness about his testimony whether it’s before the break, after the break and during the break while he’s testifying,” he said. “This is outrageous.”

A basic trial rule prevents people on the witness stand from communicating with anyone about their testimony during recesses or other breaks.

When the judge asked about the texts, Petros took Sussman’s phone to read them, and they exchanged sharp words over whether Petros snatched the phone. The bailiff threatened to call police and said “someone is going to get arrested if there’s no order in this court,” the transcript said.

Outside court, Petros repeated his objections to the electronic exchange.

“Texting in this manner is no different than being wired and having someone talk in your ear,” he said. “It was a fraud on the justice system. This case in my view is an intentional interference with the judicial process, and an act like that infringes on the ability of the court and the judicial system to operate fairly and impartially.”

He contends the texting warrants dismissal of the case and plans to file a motion.

Bill, instead of filing the motion, you can have one of your kids text message it to HarveyRuvin92435, and that way you can also vote for Kris Allen in the American Idol finale.

I tell you, Harvey has really done wonders with the electronic filing system.