Pizzi Logic: Lesson #318

“If this is the worst thing anybody can say about me that I referred an alleged crime victim to the police about some table, then I must be a pretty ethical and upstanding person,” Pizzi said.

Today's lesson underwritten by Medley taxpayers at the heavily discounted rate of $500 $80 an hour.

Bonus preview of Lesson #319:

“If rambling on and glad-handing and placating concerned constituents is a crime, I think every elected official in Dade County would get the death penalty.”

A Tale of Two AGs -- Pam Bondi vs. Dan Gelber.

Happy Monday, kids!

Did you watch a bunch of show business kids making movies of themselves, you know they don't give a....

Oh well, you know the rest.

(Lost Wages)

Remember the last election?

As they say, these things have consequences.

That's why at the same time Miami Beach mensch Dan Gelber is helping foreclosure lawyer Marc Ben-Ezra "provide support with quality control and to help evaluate policies and procedures," whatever that means, the actual AG, Pam Bondi, is doing something really important -- stopping felons from ever voting again:

Attorney General Pam Bondi says it is too easy for felons to regain their civil rights in Florida and wants new restrictions, including a waiting period of up to five years before they can seek clemency.

“I don’t believe that any felon should have an automatic restoration of rights,” said Bondi, a former Tampa prosecutor elected in November. “I believe you should have to ask, and there should be an appropriate waiting period.” (ed. note -- right after the next election!)


Bondi’s proposal, set to be formally discussed at a March 9 Cabinet meeting, would reverse a major change that took place in April 2007 at the urging of former Gov. Charlie Crist, who said the civil rights restoration process in Florida was too cumbersome and cruel to many ex-offenders.

Crist’s changes streamlined the restoration process to allow tens of thousands of felons to regain their right to vote, sit on a jury and obtain various state licenses without having to undergo a lengthy review and hearing process.

 See what happens when people vote (except released felons)?

While the poor people sleepin'
With the shade on the light
While the poor people sleepin'
All the stars come out at night

Magistrate Judge Goodman Cites Justice Scalia on Civility!

 Sanctions on Admissions
 
I'm beginning to appreciate Magistrate Judge Goodman's orders.

They have a certain directness to them, and his holdings are clearly expressed and supported by both logic and common sense.

This one dealing with sanctions for inaccurate responses to requests for admissions is a good example.

Although I do think there can be circumstances pre-trial where, akin to an sj ruling, a response can be deemed so false or inaccurate as to be sanctionable, for the most part I agree with the Judge's holding that this is reserved under Rule 37 for after trial or an adjudication of the disputed facts.

He throws in a Napoleon reference, also good.

Finally, I was right with the Judge up until the very last part of this quote:

In this spirited litigation, both sides have strongly pressed their positions at every junction and neither side has shown great willingness to make concessions, even on what are usually considered professional courtesies, such as accommodating colleagues’ deadline and scheduling issues. As a general matter, allegations of bad faith against opposing counsel, in addition to being in poor taste, are not helpful in aiding the Court’s adjudication of disputed issues. See ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE, THE ART OF PERSUADING JUDGES 34-35 (2008) (“Cultivate a tone of civility, showing that you are not blinded by passion. Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. . . . ‘An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.’”) (quoting Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 TUL. L. REV. 207, 224 (1995)).

Hold on -- Justice Scalia instructing on civility?

Guess there's a first for everything.

The Ambien Defense and The Client Who Knows Best

This past week was the final act in what I refer to as "The Ambien Defense" case.

A client and her family arrived at my office about a year ago and confided in me that the client had been arrested for DUI, a common scenario in my office. The gist of this particular case was that the client performed roadside sobriety exercises, thought she did well during the performance, but did not remember much else. She had been in an accident but did not remember driving. The only thing she did remember was going out with a friend, having some drinks, and then being dropped off at her home. The client additionally had some medical issues such as anxiety, depression, etc., and felt that the police were not very just in their arrest of her. Additionally, the client was at risk of not receiving her professional license due to the arrest.


I was hired and began the process of filing in on the case, reviewing the discovery (all the information the State has against her), and then taking depositions. The depositions are the sworn statements of the witnesses at the scene (officers, accident victim, eyewitnesses,etc. ), the goal of taking which is to find mistakes in the case as well as the perspective of the State's listed witnesses (aka the people the State Attorney's Office is relying on to get a conviction). I began the process and started researching the applicable case law when the family member and client suddenly started calling and talking about "The Ambien Defense." The client had apparently been prescribed Ambien and had taken it on the night of her arrest. She claimed that she remembered nothing and it was not her fault; it was the Ambien's fault.

The client and her family pointed me to literature that discussed reports by some Ambien users of sleep walking and not remembering their actions. I understood their belief in the defense to be misguided, but I take my duty of defending cases seriously, so I researched all available information on the subject. I found that there had never been a successfully defended trial using this defense, and as I suspected, I found that this defense would not be applicable to this client's case. First of all, Ambien is not to be combined with alcohol as it clearly states on the prescription bottle. This client knew of this prohibition, but took it anyway. Second of all, and more importantly, this particular client gave a breath test with a result of over .08, which by itself is sufficient for the state to have a guilty verdict (although it is a rebuttable presumption).  DUI is not a specific intent crime. Although there is a chance of arguing involuntary intoxication in DUI cases (rare), this client had been drinking and she knew not to take Ambien with alcohol but did so regardless. Thus, the intoxication was not involuntary. The Ambien Defense was just not applicable in her case.

Still, I read everything regarding the drug and the legal issues surrounding it, in addition to literature sent to me by the client's family, and then I shared my thoughts with them that "The Ambien Defense" was not likely a winning defense for the reasons stated above. I told them that there were other applicable defenses, but to convince 6 jurors that she was sleep walking like the characters do in the cartoon Scooby Doo was just not a story that jurors would believe. Especially not with a breath over the legal limit.

The client and family were not happy with my advice, and they then informed me they wanted a meeting with the State Attorney. THE STATE ATTORNEY. Not the Assistant State Attorney that was assigned to the case, but The Elected State Attorney, because they wanted to explain the inequities of the case to him. I, of course, explained that The State Attorney does not have private meetings with defendants in criminal cases and that is something that only happens on television. And that further more, even if it was something that could be done, it would be a terrible idea for them to do so. That sent the client and family into a tirade that I didn't know anything and that all of my plaques, years of education, and numerous victories meant nothing to them because I did not understand her situation and I did not know the law. Yes, it can be a thankless job.

They ultimately decided to hire another attorney to put on The Ambien Defense. This is the point in the story where it becomes funny to me. First, I was already paid in full, yet they decided to go somewhere else and hire another attorney. Next, I found out that they hired another attorney in town and I recognized the name. When I read more about the attorney and read the attorney's website, I found a whole section on the website dedicated to discussing Women and DUI. How interesting. The website goes on to say things such as: if you're a woman and are charged with DUI, then you need to hire a lawyer who understands women; Women have smaller bodies, smaller lungs, and other factors that cause them to be falsely accused of DUI. The menstrual period is a defense to everything. If you are having your period or just take Ambien while drinking alcohol and claim not to remember anything, then your case should be dismissed. This lawyer of course understands women and their differences. Now I feel silly, because I HAD NO IDEA THAT WOMEN WERE DIFFERENT or that the law applied to them differently.

Did I mention that the defendant made a turn against the flow of traffic and went head on with innocent motorists, causing them injury?

I had been following the case for months and actually began to think that maybe I didn't know everything about DUI defense. The case was obviously being carried on for a while, so maybe there was something that I had missed. ... I thought that for less than 30 seconds before I smiled and said to myself: "are you kidding?! The Ambien Defense?!"

The "attorney for women" who gallantly rescued this woman from lesser attorneys like me made a show of it. Motions were filed putting the State Attorney's Office on notice of the Ambien Defense, which I can only guess caused some to say "wtf is that defense?" along with multiple "are you kidding me" statements. Then the attorney filed an interesting motion that I read and wondered: are there really lawyers out there that are this dumb or are they just grandstanding for their client? For those who don't understand, "grandstanding" is when a lawyer makes a big commotion in court on their client's behalf and everyone in the room knows that the argument the lawyer is making is b.s. ... everyone except the client. That's grandstanding. When the argument gets shot down, the lawyer can say he did everything he could and his client will believe it. Well, I don't grandstand. If my client has a bad case I simply tell them. I'm not going to make a fool of myself arguing something that I know has no merit. Anyway, the case was set a couple of times for trial but was continually reset. Then, this week, the big-huge-wonderful-understanding women-knowledgeable above all other lawyers-lawyer did the most magnificent thing, and the client was so overwhelmed that she got the result she deserved......SHE PLED GUILTY TO ALL CHARGES. How do I make that sound "Ta-Da!"?

I guess I don't know the law. The poor thing actually had to take responsibility for driving while her normal faculties were impaired by alcohol and prescription medication. For all those who are reading this: Yes, I tried to be in court to hear this woman plead guilty to the charges. The Ambien Defense and The Client Who Knows Best is likely to cause another accident, and even more likely to make up ridiculous defense to avoid taking responsibility for her own voluntary actions. And remember, she is a professional, so the next time you hire an accountant, doctor, lawyer, or any other professional, be sure to look up his or her background - because this is the type of person that is what is now becoming a "professional" in our society.
Thanks for reading, commenting, and taking the time to read my thoughts. God Bless.

Florida Supreme Court Resolves Relocation Conflict

The Florida Supreme Court issued a revised opinion on February 10, 2011 in Arthur v. Arthur, weighing in on the conflict between the Second District Court's ruling in that case and the holdings of Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008); Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993); and Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990). In a nutshell, the Second District approved a lower tribunal's order permitting relocation twenty months after the entry of the Final Judgment, and the Supreme Court rejected the idea that a court is able to make a determination of best interest 20 months away, and required instead that "best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence".

Taxpayers Continue to Pay Lawyers to Defend Citrus Canker Debacle.

It's hard to describe exactly why I find the state's continued defense of its disastrous citrus canker eradication program so irksome.

Was it the program in the first place, so badly designed, industry-skewed, poorly managed and enforced, and which only succeeded in eradicating a way of life for many of us who grew up in South Florida enjoying the abundant fruit on every street corner and every backyard?

Was it the way the state wasted millions of taxpayer dollars paying private lawyers to take untenable legal positions and engage in "scorched earth" litigation tactics that only managed to hurt the citizens they were entrusted to defend?

Is it the pointless waste of judicial resources, forcing jurors, experts, judges, and precious time and money to be spent trying the same issues over and over again in county after county?

Whatever it is, the madness needs to end.

Consider the exceedingly narrow playing field carved out by the state in the latest citrus canker case going to trial in Palm Beach:

“It’s better to have a short citrus tree. You get more fruit, and it’s easier to get to,” Parsons said.

How f&*%ing inane! 

Seriously, is anyone even piloting this ship???

There Was A Time When No One Wanted To Hire Spencer Aronfeld.

It's true!

Just listen to Spencer explain:

 “I have owned and operated my own law firm from the day I was sworn in as a lawyer,” said Aronfeld. “Not because I wanted to or because it was my dream, but because even though I graduated from the University of Miami of Law, cum laude, in 1991, I simply could not get an interview, much less a job.” 

Now he has a nice law practice, a book, and lectures with Gerry Spence.

(Ok, I could do without the last part).

Carlton Fields Now Working on Red Light Camera Cases.

I love how this article makes it seem like the mere presence of competent lawyers can magically turn a case around:

Instead of letting a police community service aide try to combat legal arguments raised by attorneys hired to beat the tickets, the city dispatched Assistant City Attorney Lisa Conforti.

She got a boost from an attorney from the high-powered law firm of Carlton Fields, who fed Conforti case law and advice. The attorney, Amanda Sansone, is being paid by American Traffic Solutions, which operates cameras in West Palm Beach, Palm Springs and Juno Beach, and has contracts with other Palm Beach County municipalities planning to launch red-light camera programs.

"It's preposterous," attorney Robert Pasch said of the legal muscle being used to collect the $158 tickets. "There's three attorneys in there and they brought a box of case law with them."

What's "preposterous" about this?

It's obviously in the company's best interests for the cities they service to succeed on these things, so they dispatch a qualified associate from Tampa to show them how to win a few.

Big deal.

I'm more interested in how it makes the city look that their legal representatives have to be "fed" cases and advice in order to prevail on a traffic ticket.

Amanda, welcome to South Florida!

3d DCA Watch -- Judge Shepherd Is Happy To Not Question Judge Learned Hand.

I pretty much think any judge named "Learned Hand" should get a wide berth and be entitled to do whatever the hail he wants.

I mean, the judge is literally named "Learned Hand."

Well, in today's bunker watch, we peer at the delicate dance between our very apodicticly-minded Judge Shepherd and the Hand of Learning:

In fairness to the parties, I note that the doctrine, first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952), appears to have fragmented into several divergent versions. See Shaul Serban, Evolution of a Defense in Maritime Law: A Survey of the Primary Duty Rule, 18 U.S.F. Mar. L.J. 253, 282-283 (2006). Some courts in the Second Circuit—where Judge Hand sat for more than ten years—have questioned its continuing viability. See, e.g., Borges v. Seabulk Int’l, Inc., 456 F. Supp. 2d 387, 393 (D. Conn. 2006); Lombas v. Moran Towing & Transp. Co., 899 F. Supp. 1089, 1096 (S.D.N.Y. 1995); see also Dunbar v. DuBois’ Sons Co., 275 F.2d 304, 306 (2d Cir. 1960). Happily, I need not question Judge Hand for purposes of this opinion.

Question -- then why go there?

Either take the primary duty doctrine straight on, or defer to it, but why note "several fragmented divergent versions," and then move on?

Actually, I think Judge Shepherd has a point on his dissent.  He dissented on a sailor's award of future medical care costs when, at the last minute, the plaintiff had his expert opine not just on future medical costs in Nicaragua, where the sailor lived most of his life(?), but also in the United States, which is dramatically more expensive:

As to the second issue, I find the trial court reversibly erred by permitting the plaintiff’s vocational rehabilitation expert, Pedro Roman, to amend, four days before trial, his life care plan for Cox to include future medical care costs. Roman estimated future medical care, if performed in Nicaragua, at approximately $5000 and $241,398.20, if provided in the United States. Royal Caribbean’s vocational rehabilitation expert earlier had estimated Cox’s future medical care only in Nicaragua, where Cox was born and has lived for almost all of his forty-nine years.

Hold on -- the same future medical care in Nicaragua would cost $5k, but in the US would be a staggering $241k?

Hmm, I wonder what the difference is between the two countries in how they administer health care to their citizens?  (Hint:  poorly funded but improving public health care system)

In any event, where does the sailor live?  Does he have the right to reside in the United States?  I would have challenged the US future medicals as speculative unless there was a basis to believe he could incur those expenses here.

Oh well, tell it to the (Learned) Hand.

It's Citibank Arbitration Day in the SD FL!

Citibank Arbitration Clause

Are you arbitration-ed out?

Waiting with bated breath for the Supremes to rule in Concepion already?

Well we have two significant arbitration updates to report on this evening.

First, Judge King invalidated Citibank's standard no-class action/arbitration clause in its credit card agreements, finding the clause to be substantively unconscionable under South Dakota law.

The opinion, which could potentially have wide application, has been Scribified above.

Second, my friends at Aventura law firm Stok Folk + Kon have scored big, with the Supremes taking cert in an arbitration clause waiver case also involving Citibank.

You can read the 11th Circuit's opinion here, which I humbly believe was wrongly decided.

Come on, the bank filed an answer(!), did not raise arbitration therein, and allowed the firm to serve an offer of judgment, reply to the answer, and discovery before suddenly realizing they have an applicable arbitration clause argument?

It's also picayune for the 11th to focus on the lack of record evidence of the time and money spent litigating in state court before the arbitration clause was invoked.  The mere existence of the offer of judgment, reply to the answer and discovery requests should be sufficient to establish these facts for purposes of evaluating the prejudice to the law firm of Citibank sandbagging them a month later with the arbitration clause.

Seriously, should they have done a notice of filing of their time runs to prove this point?

(Whether or not these actions constitute sufficient prejudice is a different issue, and whether prejudice should be required at all after a waiver is presumably what the Court will be looking at).

Now, the last time a Florida native went all the way up to DC to argue a big-time case before the Supremes, there was a little issue with names.

Let's get it right this time, fellas!

Buju Banton -- Guilty Verdict!

BREAKING -- Buju Banton found guilty.

I'd Rather Be Steve Hammer Than A Nail.

No, I'm not referring to that Simon & Garfunkel song.

I'm talking about Steven J. Hammer, who is beating the pants off Big Tobacco in the wake of the controversial 2006 Florida Supreme opinion allowing for certain jury findings to be applied against the defendants:

Tobacco company lawyers insist the process is rigged.

"We believe the trial courts have used trial plans that are so fundamentally unfair they violate due process and Florida law," said Murray Garnick of Altria Client Services, which represents Altria Group Inc. subsidiary Philip Morris USA. "Each case must be judged on its own facts."

The tobacco companies, however, have lost their first appeal over how Florida courts are handling the cases.

The state's 1st District Court of Appeal ruled against R.J. Reynolds Tobacco Co. in December, upholding a $28.3 million verdict for a dead smoker's wife and endorsing the way trial judges have interpreted the state Supreme Court's decision.

Steven J. Hammer, an attorney whose Fort Lauderdale firm is handling hundreds of smoker lawsuits, said the Florida cases have changed the balance of power in the courtroom because tobacco companies are prevented from arguing that their products aren't necessarily dangerous and addictive.

"As a result, the whole story is being told: how they lied to the public, all for the almighty dollar," he said. 

 If Steve and his colleagues keep winning, Big Tobacco might even consider -- gasp(!) -- settling:

If the losing trend and multimillion-dollar verdicts continue, some legal experts said the tobacco companies may rethink their long-standing policy against settling the smoker lawsuits.

"When we get to the point that plaintiff verdicts are upheld, with the industry looking at thousands of additional trials and expenses, they would weigh all of that together and possibly settle later down the road," said Edward Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University law school in Boston. 

 That should only take about 4000 years.

In other news, Mike Kosnitzky may have come up with a great way to get your firm to pay for tickets to the South Beach Wine & Food Festival:

“It gives me the ability to network with existing clients as well as meeting new people with similar interests,” says Mike Kosnitzky, a partner at the law firm of Boies, Schiller & Flexner, LLP, who with his wife will attend the Burger Bash, the Perrier-Jouët BubbleQ and the Whole Foods Grand Tasting Village. “There’s something to be said about being able to network with the people you do business with in a relaxed setting.”

This is very true.

That's why I've put in to get my firm to cover the expenses for me to attend the world's largest matzo ball attempt at the Tuscon Jewish Food Festival.

Come on, we're talking the world's largest matzoh ball, people -- I believe the potential benefits are obvious.

Warren Gamaliel Harding -- I Just Want Someone To Talk To.

My favorite President!!

Foreclosure Lawyers Have Conflicts of Interest?

I can't believe lawyers could be motivated by something other than what is in the best interests of their clients:

[M]ediators complain lenders and their attorneys are stifling the system by pressuring negotiations to end in a stalemate.

In some cases, mediators report that deals were struck for trial payment plans or to seek a loan modification, but that banks or their attorneys asked for the meeting to be recorded as an impasse.

The motive for a deadlock, homeowner advocates say, is money. Declaring a different outcome stalls the process and could mean a return to mediation if an agreement falls through. At the same time, several of the state's large foreclosure law firms also run title companies, which can pick up business when a home is repossessed.

This is apparently why the mediation forms no longer have "impasse," but instead have "adjournment" as an option if the mediation does not either settle or fail.

I'm sure the Bar will get right on this.

In other news, today is President's Day, which means your kids are home, the courts are closed, and you get to wear jeans to the office, write a letter or work half-heartedly on a brief, surf the tubes without interruption for three hours, and pretend you did something billable.

I call that American exceptionalism.

More on Pedro and Ryan's Move to DLA Piper!

Wow, this is pretty cool -- it turns out Bono actually penned an ode to their enduring relationship.

Enjoy!

DLA Piper Opens Miami Office.

Pedro J. Martinez-Fraga's wanderlust continues, along with C. Ryan Reetz.

How best to describe these two, rockin' down the highway from GT to SSD, and now to DLA P?

The Dynamic Duo, Batman and Robin, Thunderbolt and Lightfoot, Seals and Crofts, Bert and Ernie.....believe me I could do this all night.

But they're both friends of mine, both tremendous lawyers and they're both going to DLA Piper:

Helping DLA launch in Miami are former Squire Sanders partners Pedro Martinez-Fraga and C. Ryan Reetz, both of whom predominantly advise Latin American clients on international commercial and investment treaty arbitrations. Martinez-Fraga worked at Greenberg Traurig before moving to Squire Sanders, where he has served as head of that firm's international dispute resolution practice in Florida and Latin America, according to The NLJ.

Sonny and Cher, Laurel and Hardy, Steve and Edie, Rocky and Bullwinkle, Laverne and Shirley......this is kinda fun......

Footsie Case Inches Closer to Trial; Defendant ASSUMES Something!

Defendant Assumes

You know that little case involving some damage to a few boats yachts, well it appears to be inching closer to trial.

However, on the eve of trial, there may possibly be a medical issue involving Peter Halmos, necessitating an emergency motion for continuance.

We wish Mr. Halmos well.

Meanwhile, the Court has denied the latest motion for sanctions, this time by Defendants, and the Court adds its usual rhetorical flourish:

The Court finds there is one simple fact missing from this motion that requires denial of same ... there is simply no showing that plaintiffs, in fact, had these documents in their possession. Suggesting that they must have ... should have ... gotta have ... doesn't change that fact.

This is a motion that is on the borderline of being in bad faith.

The Court then concludes:

The Court has previously warned defendant not to continue to attempt "to kill an ant with a shotgun". To the extent that defendant ASSUMES the Court has any prejudices against plaintiffs it would be wise to understand the differences between disagreements with who runs this Court verses a lack of objectivity regarding the case.

Exactly!

When you ASSUME the Court has any prejudices against plaintiffs it would be wise to understand the differences between disagreements with who runs this Court verses a lack of objectivity regarding the case, you make an ASS out of U and.....well, I'm gonna stop now.

3d DCA Enjoins All Non-Judge Emas Investiture Legal News.

You may have heard that today is the day that young Fine Jacobson(!) associate Kevin Emas gets investitured (ed. note -- is that a word?) -- 3 pm in the bunker's mechanical room/janitorial closet/gym spacious central courtroom.

Congrats Judge!  We're proud and happy for you!

In honor of this auspicious event, the 3d has sensibly placed an embargo on all other South Florida legal news until after the fourth robing ceremony and the 190-piece/600 voice ensemble orchestra has completed its extended rendition of Ashford & Simpson's "Ain't Nothing Like the Real Thing," which means we should be out of there and able to report on other less worthy news by around 9:30 or so.

See you all there!

"Hello"! Uncle Leo -- RIP

I don't know about you, but sometimes you get focused on a project and you really get going on it, and you wind up losing all sense of time.

That's what happened to me this morning -- I holed up in my office and spent the last three hours recreating the Tom Hanks "fire" scene from Cast Away.

Believe me, it's harder than it looks.

I finally got a raging fire going and immediately took to the office intercom, sweaty and shirtless and almost delirious with joy, and just kept shouting "Aha!  Look what I've created! I have made FIRE!!"

Needless to say, I'm pretty sure my partners were quite thrilled at my accomplishment.

Anyways, I share this office anecdote because while this was all going on I got a nice email from a reader alerting me to the untimely demise of Seinfeld's Uncle Leo, TV veteran Len Lesser.

You gave us hours of painful, awkward laughter -- RIP my friend.

Akerman Thanks Litigation Gods for Chinese Drywall!

It's important to note the litigation requires (at least) two sides, and there has to be something close to a fair fight, or the other side will just find something else to do.

For example, the white-shoe law firms representing former Fannie Mae executives have been feasting at the public trough, billing at least $132 million defending against various shareholder and other lawsuits directed at the bank's allegedly fraudulent business practices.

This is my favorite part of that story:

DeWine cited the deposition of Franklin Raines from April, when the plaintiffs were the only ones asking questions. Although the Fannie Mae defendants had 13 lawyers present, none asked a single question.

DeWine also testified that when the judge has conferences to check on the status of the litigation, Fannie Mae defendants typically bring 35 to 40 attorneys and paralegals, while the plaintiffs normally show up with just three.

Of course!

I'm surprised there were only 13 lawyers at that deposition.

DeWine is obviously not familiar with how I roll when an important client is being deposed -- I have two associates carry my documents, another sets up the laptop, three are passing me post-its during the depo, one is logged into Egotastic, four glare at opposing counsel, and two watch with rapt awe as I utter the only words I will speak during the entire episode:  "object to form."

Ca-ching!

Speaking of greenbacks, Julie Kay and her amazing sources reveal that Akerman is riding the Chinese Drywall train all the way to payday:

“We were pleased with the year, and I think it got progressively better as it went on,” Smulian said.

Litigation work, the firm’s largest single practice area, was up 15 percent. He credited work on consumer finance, Chinese drywall and class action litigation.

Doesn't it suck when one of those big matters goes away?  You always want to be successful, but not too successful.

It's like professional wrestling, but without the overweight men in tights.

(Actually, I take that last part back.)

3d DCA Watch -- So Now Injunctions Have to Contain "Findings"? Who Knew?

View more videos at: http://www.nbcmiami.com.

Yes kids, today the bunker made actual real certified news, reversing Judge Eig's temporary injunction allowing Krop basketball player Brian Delancy to play in the state championship series.

Judge Eig did everything right, every little thing, well except for one very small omission:

The order and the record contain no findings sufficient to sustain such an injunction.  Accordingly, we vacate the order and dissolve the temporary injunction. 

Oops!

You know, one thing we've learned over the years is the Robed Ones are incredible sticklers for detail (hey, I'm trying to be serious here).

Oh well, there's always next time (except here, probably not).

Keep Your Eye on the Prize.

 

This looks like a timely and relevant event and will be much better than anything else you were planning to do that day.

Do we understand each other?

Law Updates for February 11, 2011

Steih, 36 FLW 254, 2nd DCA, Self-defense - Error to deny Judgement of Acquittal after close of State's case where the defense presented prima facie case of self-defense and State failed to prove beyond a reasonable doubt that he did not act in self-defense when he stabbed the victim.


Baker, 36 FLW 275, 1st DCA, Denial of expungement by the court - Court abused its discretion and its reasoning was insufficiently related to the facts and circumstances of the case.  Improper to deny based on the def's occupation as related to the nature of the charge.


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

Of Course Jamie-Lynn Sigler Is Somehow Involved With Rothstein!

Bob Norman breaks it down here, but it involves allegations in the Rothstein investor suit being handled by Bill Scherer, in which a few of the defendants have counterclaimed:

To drum up cash meant to help bail out their millions, the suit claims that Von Allmen worked hand in hand with Clockwork Capital Advisors, a hedge fund run by A.J. Discala, a Hollywood agent and dubious businessman whose claim to fame was having married Jamie-Lynn Sigler, aka Meadow Soprano. The idea was to turn clockwork into the new Banyan, the monster hedge fund run by George Levin that financed much of Rothstein's scheme.

Von Allmen also formed Delaware companies Razorback Funding and D3 Capital Club as vehicles to raise money from unwitting investors into Rothstein's scheme. The suit claims more than 23 investors sank money into the venture. 

Ok, A.J. Discala is a lout of the highest order, so I'm not surprised by this.

But the bigger question is who gets to depose Jamie-Lynn?

(Don't tell me fancy-pants Eliot Lauer, that will just make a bad situation worse).

11th Circuit Conducts Erie Analysis of Bremen Analysis of Krenkel Factors.

I'm sick of the law this afternoon.

Law, law, law.

I could note the 11th Circuit's surprise enforcement of a forum selection clause that sends Alabama customers to Cook County, IL -- where the Court is laying off employees left and right, so I'm sure they'll be real happy to see a new case where they have to apply Alabama law to an Alabama contract dispute.

I could point out Marc Ben-Ezra laying off 236 employees, and it's all his (former) client's fault:

Ben-Ezra & Katz, in a memo released by a company spokesman, said the firm was "forced to take this action after Fannie Mae surprisingly terminated its relationship with the firm." In a notice sent five days ago, Fannie Mae officials said all exisiting foreclosures, mediations and bankruptcies needed to be transferred to other loan servicers by Tuesday, citing "document execution" issues.

It's ok Marc, I've had "document execution" issues too, but I usually blame the Gin Gibsons and try to make it right in the morning.

Oh hail, let's talk George Shearing.

George was born both blind and British -- two massive limitations that he somehow managed to overcome.

I loved George's unique phrasing -- what he called "locked hands," which created a harmonic block chord effect that was mesmerizing and fascinating to watch.  His quintet pretty much played everything, and made everything their own.

I vividly recall seeing George at the original Sunrise Musical Theater sometime in the mid to late 70s, where he did a solo gig that was just out of this world.

In fact, one of his best albums was titled "Out of This World," a 1970 effort where Shearing tried to "get hip" by covering some modern tunes, including "Hey Jude" and "Here, There and Everywhere."

It didn't matter -- he could have played selections from the NYC Yellow Pages for two hours and it would have sounded just as good.

RIP Old Man.

Ava Maria University Gets "Death Book" Zealot as New Head!

Ava Maria University, a conservative Catholic law school based in Naples, made some headlines a while back when Loring Spolter noted that Judge Zloch has hired several law clerks from that school.

Believe me, I'm not getting in the middle of that.

But it seems the struggling school has a new head: James Towey, the former director of the White House Office of Faith-Based and Community Initiatives under George W. Bush.

Towey's a Seminole law grad who most recently made news flocking a "death book for veterans"(!) as part of the scare campaign over health care reform.

Amid many crazy health care allegations, this one was a doozy and earned Towey the much-coveted BuzzFeed  "Pure Manure" rating.

So the school's in good hands (I'm talking about the FSU part).

BTW, the Washington Monthly previously took a look at Ava Maria back in late 2009, and it didn't look so good:

Most of the original faculty have fled or been pushed out, and the quality of the students has tumbled. One current professor told me, “Our student body now is one of the four or five worst in America.” The instability has also wreaked havoc on the school’s reputation: in the 2009 U.S. News & World Report law school rankings, Ave Maria tied for last place in the peer-assessment category, the most important measure in determining a school’s standing. (The school was not officially ranked because U.S. News doesn’t rank schools that land in the bottom tier.) Meanwhile, there are signs that Monaghan’s foundation, which funds the law school and the university, is on the verge of running out of money, in part because Monaghan bet his fortune—and the future of his nonprofits—on the now-crumbling Florida real estate market. Earlier this year, Ave Maria University’s second-longest-standing professor resigned, but not before sending a letter to administrators expressing his alarm at the school’s financial straits. “I fear that all of us (to different degrees) are participating in something that we may later deeply regret,” he wrote, “namely selling to young people and their families [an] educational product that we do not have sufficient reason to believe can be delivered.”

 Sounds like a great place to spend a lot of money when the legal job market is already in the crapper.

Judge Milton Hirsch Word Cloud!

Rump and his merry band of quipsters are having some fun with a practice memo to attorneys issued by new Judge Milton Hirsch.

To celebrate I have prepared a word cloud of the paragraph which very pointedly deals with the sin of handing up cases to the Judge.

Enjoy (sedulously, of course)!

Your $400 Million Case Will Be Decided By the Six People Ahead of You in Line at WalMart.

I found this article on what people are wearing when they go to court to be, well, revealing:

Justice may be blind, but judges in South Florida are not.

And what many are seeing is a continuing increase in the number of people showing up to court in very casual clothes, including one woman in Fort Lauderdale who recently appeared wearing curlers, bedroom slippers and a shower cap.

The culture of casual dressing is most pronounced in traffic and small claims cases. Criminal defense attorneys tell their clients to dress up because "first impressions matter," said Fort Lauderdale attorney Richard Champagne.

But unlike in some other states, none of South Florida's courthouses imposes a formal dress code. Broward's satellite courthouse in Hollywood is the only one in the tri-county area to even attempt sartorial order in the court.

Signs posted throughout that courthouse state "No tank tops," and bailiffs there say it's not unusual for defendants to run across the street to Target to buy a shirt. Broward County Judge Sharon Zeller said the branch may have been singled out because so many people wore tanks.

Lawyers in their Brickell glass houses often forget that when they say with much bravado "well then we'll try this case!" what they really mean is they plan to ask the guy in a tank top at Target to decide a complex question of securities law involving several hundred million dollars.

Would you trust your complex, fact-intensive and highly sophisticated case to the next six people ahead of you at Wal-Mart?

This is particularly a problem for those of us accustomed to having our way, to controlling large firms and advising large clients, where we simply expect that if properly explained, cajoled, or persuaded, we can convince and/or order anyone to do what we want.

Yet when we walk into a courtroom, we're no longer directing our attorneys or staff -- who act at our beck and call -- or controlling the fates of large businesses and institutions -- instead we're talking to six guys or gals in tank tops or bedroom slippers who don't give a hail who you are.

Buju Banton Goes to Court (Again).

Once again Buju has "him blacker" attorney David O. Markus at his side, as well as a Grammy that Banton won last night for Best Reggae Album.

I recognize that prosecutors can do this, but a better question is why --

The five-time Grammy nominated artiste, whose real name is Mark Myrie, had originally been tried on charges of conspiracy to possess with intent to distribute cocaine, and aiding and abetting the possession of a firearm during a drug-trafficking offence.

He will now be tried for conspiracy to possess with the intent to distribute cocaine; attempted possession with the intent to distribute cocaine; possession of a firearm in furtherance of a drugtrafficking offence; and using the wires to facilitate a drug trafficking offence.

If convicted, Buju faces up to 20 years’ imprisonment.

The new indictment was secured last November by Prosecutor James Preston in an effort to secure a conviction against the Jamaican artiste, whose legal team is claiming that he had been entrapped by the US Government.

Also, what may weigh on the artiste’s mind when he steps inside the number 13 courtroom on the towering building may be the federal government’s impressive conviction rate of above 90 per cent — and its penchant for winning retrials by multiplying charges.

One would hope this type of power is reserved for serious crimes where there is a good faith belief something truly went wrong the first time.

In the civil setting this type of thing is unusual to say the least.

And what a way to spend Valentine's Day!

Judge Cohen Lando Lowers the Boom on Marc Ben-Ezra.

I don't get why banks think the rules of evidence don't seem to apply to them.

Their argument on missing/misfiled/wrong docs is always basically "but come on, judge."

Would this work for anyone else?

Miami-Dade Circuit Judge Maxine Cohen Lando expressed her displeasure Friday in a case that involved a property in Homestead with a $265,134 foreclosure judgment issued in July.

Lando said the so-called original note and original mortgage were filed months after the bank said those documents were lost.

"That in itself is a fraud upon the court," Lando wrote in an order to show cause as to why she should not hold Ben-Ezra & Katz attorneys in contempt.

But, she added, the action "pales in comparison" to the fact that the mortgage and note are to a different property in Lehigh Acres, and that the documents are improperly signed and notarized. Lando said her verbal contempt finding on Friday would be followed by a written order.

Although Marc Ben-Ezra, 44, was not the direct attorney handling the case, the homeowner's attorney Maria Mussari said the judge ordered the owner or head of the firm to appear. Ben-Ezra has no disciplinary history with the Florida Bar.

It's way past time there is some accountability not just in foreclosure work but with all sworn evidence submitted  -- if it doesn't fit, don't submit.

Marc's firm says it was trying to fix the problem:

In a statement late Thursday, the law firm acknowledged it had found "technical paperwork issues," but added that "there is no issue of whether the information in the affected files is correct. No homeowner has been hurt because of this."

The firm said it was correcting the issues. "Fannie Mae did not give us the chance to execute that plan," the statement said.

Is this blaming the client?

SFL Friday -- I'm Done.

Important Legal Dispute Required Actual Federal Court Resolution!

Order on Important Legal Issue
I read a lot of decisions, and some are fairly routine, while others are just routine.

Every one in a while, however, you come across an important legal issue that absolutely cannot be resolved by the parties, the gap is simply too wide, and that's where you must submit the dispute and rely on the awesome power of the federal judiciary to squarely address the conflict.

Like this order.

Now why'd you all bother Judge Seitz on this?

Shuster & Saben, LLC obtains judgment against Chase Home Finance.

A Florida court has entered Final Judgment against Chase Home Finance in a foreclosure case won by the foreclosure lawyers at Shuster & Saben, LLC. The judgment commands Chase to pay the homeowner and his attorneys $9,950.00 for attorney's fees and costs. Previously, Shuster & Saben obtained a dismissal of the case as a sanction against Chase after Chase failed to comply with two Court orders concerning answering interrogatories (written questions answered under oath) and providing written discovery.

Under Florida law in most cases where the homeowner wins their foreclosure case the bank must reimburse the homeowner for their legal expenses. The amount of the judgment obtained substantially exceeds the amount of money paid by the homeowner to Shuster & Saben because the judgment includes reimbursement of $1,750.00 for an expert witness to testify at the attorney fee hearing ( a cost paid for by the firm not the client ) and for work performed by the firm that was not changed to the client.

From this judgment Shuster & Saben firm will reimburse our client’s legal expenses. When this case began, all our client wanted was a waiver of deficiency on an upside-down rental property. At the onset of the case our firm offered to settle the case by Deed In Lieu of Foreclosure or agreed judgment of foreclosure with waiver of deficiency. Chase as the servicer of a FNMA loan did not accept the settlement offer. Now, a year later, Chase does not have the property and has spent thousands of dollars paying both their lawyers and for all of the time our firm spent defending the case.

To review a redacted copy of the judgment obtained against Chase please click the link below.

Redacted Final Judgment Against Chase

About Shuster & Saben: When the foreclosure defense lawyers at Shuster & Saben win foreclosure cases we aggressively seek to recover attorneys fees from the bank minimize or eliminate or client’s legal expenses.

Kevin Unger Is A Pinball Wizard.

Boy did I love to play pinball machines when I was a kid.

I loved the sounds, the lights, the compressed excitement -- the straightforward mechanics and technology.  I found the larger than life themes to be intoxicating, the idea that an entire game could be based, for example, on BJ and the Bear or ELO's Discovery album.

Bizarre, really, when you think of it.

I guess me and Plantation ticket attorney Kevin Unger think alike:

At the Florida Arcade and Pinball Expo, which runs through Sunday, a near-extinct pastime is enjoying a rousing resurrection. Dozens of aficionados, or pinheads, prowled the hall Thursday, doling out $12 for unlimited free play on about 320 pinball machines ranging from 1970s mechanical models to high-tech electronic gizmos.

There was Fort Lauderdale attorney Kevin Unger, 44, in tie and starched shirt, working the flippers with dexterous fingers. "It's a piece of my childhood," he said. "They're a lost form of entertainment."

Ok, this sounds like a hoot.

Kev, bring some quarters dude, I'm ducking out of a conference call and I'll see you around lunchtime?

It's Sanctions Thursday!

Weren't we just talking about 57.105 and pointless/wasteful/inappropriate sanctions motions?

Well a birdie in Tally must have heard our conversation, because in walks the Florida Supreme Court to big foot us on this very issue:

The conflict issue presented for our determination is whether the safe harbor provision of section 57.105(4), Florida Statutes, applies where a party‟s frivolous claims were originally filed before the provision became effective, but the initial motion seeking attorney‟s fees was filed in court after the provision became effective without the motion first having been served on the opposing party twenty-one days before filing.

 Oy veh.

Is this really a situation likely to ever be repeated again?

Anyways, who wins -- the First or Fifth DCA?

And the steel cage wrestling belt goes to......the First:

We conclude that the safe harbor provision does not apply to a case where claims found to be frivolous by a trial court were originally filed before the safe harbor provision took effect. We therefore quash the decision of the Fifth District in Kenniasty to the extent that it is inconsistent with this opinion, and approve the decision of the First District in Walker to the extent that it is consistent with our analysis and holding.

This makes sense, I think.

FBA 30th Anniversary Reception Tonight!

I'm spending all day getting ready for the big FBA reception tonight (David has photos here).

For me that means the usual -- face painting, signed Brett Barfield jersey, mani/pedi at the Hyatt.

I'm also trying to come up with something funny to say about Egypt.

This is going to be HUGE!

Rule 11 Motions -- Please Use Sparingly.

We all know lawyers who love to threaten sanctions.  They write nasty letters, throw around 57.105 and generally try to bully their way through a lawsuit.  These lawyers are especially annoying at depositions, or at hearings where the judge can't or won't control the courtroom.

Sometimes this is client-driven, other times the lawyer is just not very skilled and falls back on threats and bluster -- this is easier than actually drafting a summary judgment motion that will be granted..

Of course, there are also times when such a motion is appropriate and in fact necessary.

Judge Hoeveler just entered an order (isn't it great he's still entering orders?) on a Rule 11 motion in a workplace discrimination case where the "sanctionable" conduct seems to be about fundamentally disputed issues of fact:

In moving for sanctions, Goodyear submits that the plaintiffs factual claims about harassment are patently false and frivolous.  In support of this position, Goodyear provided affidavits by Flores and Galeano, in which they generally deny discriminating against the plaintiffs. In particular, Mr. Flores states that he routinely hired Cubans and 'never harbored any race/national origin animus against Cubans." Further, he states that the plaintiffs were fired for lawful reasons; specifically: (1) Mr. Pardon was fired for violating Goodyear's policy on damaging customers' cars while parking them in the mechanic's service bays; (2) Mr. Carbrera was fired for insubordination, for refusing to stand on the sidewalk with an advertisement placard during part of his shift; and (3 ) Mr. Milo wasn't fired at all, but voluntarily resigned (albeit in the context of a salary dispute) . Mr. Galeano makes similar exculpatory statements concerning the fourth plaintiff, Mr. Girard--who, incidentally, was Mr. Galeano' s former roommate, in addition to being his subordinate at Goodyear. Both Flores and Galeano also submit that it was actually the plaintiffs who instigated the verbal jousting, calling the supervisors (who are of Honduran and Nicaraguan heritage) "arrow throwers," and constantly making fun of Mr. Flores for being "fat. " Goodyear served these affidavits, along with a copy of its Rule 11 motion, upon the plaintiffs and waited twenty-one days before filing the Rule 11 motion with the Court, as required by Rule 11 (c) (2) .

The plaintiffs responded by submitting the plaintiffs' answers to the defendant's interrogatory requests, in which the plaintiffs basically elaborate on the factual allegations included in the complaint about the racial slurs, misconduct, and hostile environment at Goodyear. The written statements made by the plaintiffs in response to discovery requests tend to support their pleadings, and the Court cannot conclude that this lawsuit is frivolous. Although the affidavits by Mr. Flores and Mr. Galeano are probative evidence against the plaintiffs claims, the parties' conflicting accounts of what happened simply demonstrate that there are fact disputes that, if resolved in favor of the plaintiffs, may allow them to prevail. In any event, the defendants have not met their relatively high burden of showing the lawsuit is so baseless in law or fact to justify Rule 11 sanctions.

And this motion was brought why?

3d DCA Watch -- Humans Once Were Word Processors.

It may be the combination of reading David Rakoff's sardonic new collection of essays Half Empty and watching Louis C.K.'s sick new series Louie, but I'm in a mighty cynical, curmudgeonly mood right about now.

So this may not be the best time to review recent bunker-approved legal transmissions, but what the hey it's hump day:

Liebman v. Miami-Dade:

Judge Emas debuts with a respectable, apodictic entry that name-checks the limited scope of appellate review.

Nice job, your honor.

Lopez v. UAC:

Kudos to the kids at UM who handled this matter pro bono:

We express our appreciation for the professional briefs and oral argument presented on behalf of Mr. Lopez by pro bono counsel and a certified legal intern from the University of Miami School of Law.

N.B. -- good luck finding a job!

Judge Salter also calls out the Commission for a ridiculous document dump:

It is a logical inference that the Agency “adjudicator” who made the September 1, 2009, redetermination of disqualification for benefits, and the appeals referee who then considered Mr. Lopez’s appeal, saw the four documents that Mr. Lopez apparently did not see until the Commission attempted to file them here.

Hmm, good lesson for new lawyers -- this is the type of discovery shenanigans you will be dealing with for the rest of your life.

Habeeb v,. Linder:

Yes Virginia, there once was a time when people used the word "guff" unironically, thought Hazel was funny, and also acted as genuine "word processors":

The warranty deed, a “Ramco Form 01,” was a pre-printed form widely used by Florida practitioners in the days when “word processors” were human typists rather than compact machines.

I even remember a time when lawyers had "dictation machines" on their desks, and telephone messages were little slips of paper that were placed in a physical "in box."

How in the world did we manage to get anything done?

I'd Like to Schedule Some Alone Time With Fred Karlinsky.

All of us struggle with striking a balance between the 24/7 demands of our jobs and maintaining positive and life-affirming relationships with our significant others, our family, our peers, our community, the world at large and yes, even with ourselves.

Fred Karlinsky has an answer to this dilemma:

“Fred says he can’t avoid working evenings, sometimes even in the middle of the night – as head of Colodny, Fass, Talenfeld, Karlinsky & Abate’s insurance regulatory practice, he communicates with clients and lawyers in time zones around the world. “I’m on 24/7. I know my wife gets annoyed, but I owe it to clients to respond when they need an answer.”

Ok, I agree that insurance regulatory clients are important and they are "owed" a reasonably prompt response.

But what about the spouse?  She surely is "owed' something as well:

After more than 12 hours at the office, Fred Karlinsky has arrived home to share the details of his day with his wife, Autumn. But just as she sets the roasted chicken on the dinner table, Fred’s BlackBerry pings, announcing the arrival of a new e-mail. A quick glance down and Fred’s back in work mode, shooting off a response.

“Remember,” Autumn pipes up: “Your BlackBerry is NOT invited to dinner.” By now, Autumn is realistic enough to know it may take a second reminder -- and possibly even a third nudge a few hours later when she and her husband finally have some alone time.

Much has been written about Crackberry addiction -- the need to be constantly "connected," the feeling that you are missing something if you don't immediately check your email to learn there is another bullcrap CLE available or that LexisNexis really wants you back as a customer.

In other words, it is possible that the desire to be "plugged in" at all times does not exactly coincide with the business necessity to check every nonsense email or text message at every possible moment.

In Fred's case, his wife has to schedule alone time with him, via -- what else -- email:

Autumn Karlinsky, a mother of two young children, says she, too, supports her husband’s efforts to stay at the top of his game. “It has afforded me the ability not to have to work right now.” The tradeoff, she says, is that he brings work home. When she wants one-on-one time with him, she schedules it. And, she embraces his BlackBerry addiction to communicate with him. “We send e-mail back and forth all day.”

This is interesting also -- David Brooks  just yesterday wrote about the difference between electronic contact and the real, live human kind:

[H]umans communicate best when they are physically brought together. Two University of Michigan researchers brought groups of people together face to face and asked them to play a difficult cooperation game. Then they organized other groups and had them communicate electronically. The face-to-face groups thrived. The electronic groups fractured and struggled. 

That reminds me -- I need to text my wife about this.

Adorn the Loss.

To my many friends at Adorno Yoss, it's been fun interesting had it moments it was real.

11th Circuit to Florida Supreme Court: Oy with this Whole Offer of Judgment Business!

Regular readers will know my hate-hate relationship with the bewildering state of Florida offer of judgment law -- a mishmash of old and changing statutes, inconsistent and contradictory opinions, mucked up revisions to the Florida Rules of Civil of Procedure, and a general feeling of dread and creeping doom whenever one is confronted with, or God forbid, perhaps considering tendering such an offer in any piece of complex commercial litigation.

That's why I found this 11th Circuit opinion dealing with these issues such a hoot (h/t meatballer):

 In this offer of judgment case, we certify three questions to the Florida Supreme Court, seeking guidance as to the application of Florida’s offer of judgment statute, Fla. Stat. § 768.79, and Florida Rule of Civil Procedure 1.442.

First, we inquire whether an offer of judgment may be viable when filed under the following circumstances: the offer was filed by a defendant after a jury verdict for the defendant had been set aside by the district court’s grant of a new trial, and after the new trial date had been scheduled, but more than 45 days before the scheduled retrial; and the defendant ultimately prevailed because the appellate court reversed the grant of a new trial and reinstated the initial verdict. Second, we ask whether the term “joint proposal” in Rule 1.442(c)(3) applies to cases where acceptance of the offer is conditioned upon dismissal with prejudice of an offeree’s claims against an offeror and a third party. Finally, we seek a determination of whether the Florida offer of judgment statute applies to actions filed in Florida, in which there exists a contractually agreed upon choice-of-law clause providing for the application of the substantive law of another state. We certify these questions because we are unable to find definitive answers in clearly established Florida law, either case law or statutory.

 You and me both, you and me both.

Law Updates for February 5, 2011

Simms, 36 FLW 206, 2nd DCA,  Neither the anonymous tip, received at 10:30 p.m. on Halloween night, reporting that a thin, dark-haired, six foot tall man wearing a flannel shirt and pants was trying to open car doors on the block in a certain residential neighborhood, nor the officer's observation of the defendant was sufficient to provide the officer with a basis for officers to stop the defendant on suspicion of attempted burglary of automobiles.  Arrest for loitering and prowling cannot be based on anonymous tip and conduct observed by the officers did not create a level of imminent harm or danger needed for detention and subsequent arrest for loitering and prowling.  Error to deny motion to suppress evidence found in search incident to lawful arrest

Reyes, 36 FLW 209, 2nd DCA, Voir Dire/Cause - Court erred in denying cause in a sex case where juror described her involvement with child victims of sexual abuse and sex abuse issues in her family and jurors responses during voir dire clearly did not express a final, neutral, and detached determination to sit as a fair and impartial juror.

Ha, 36 FLW 220, 1st DCA, Motion to Withdraw - The plea should have been granted.  The Judge improperly initiated plea discussions. Judge did not allow the def to withdraw plea even though he later determined that sentence in excess of plea agreement had to be imposed.  Trial judge stated and implied that def would have received lesser sentence if pled prior to jury selection, and it appears that not all the discussion with the judge about the plea was on the record.



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

Missed It By That Much.

Talk about chutzpah, what do you make of a defendant that goes through a full  bench trial before Judge Moreno, loses a breach of k to the tune of $5 million, then moves to vacate the judgment for lack of diversity jurisdiction?

Not much, according to the Judge.

Practitioner's tip -- perhaps this motion would have been better received before you answer, litigate the case, go through a whole trial, and then lose?

Just a suggestion.

BREAKING -- BoA Checking Overdraft Settles HUGE!

Good to see all that TARP money going to a good place:

Plaintiffs and Bank of America, N.A., through their respective undersigned counsel, hereby notify the Court that on or around January 27, 2011, they executed a Memorandum of Understanding evidencing an agreement in principle, under which Bank of America will pay the total sum of four hundred ten million and 00/100 dollars ($410,000,000.00) in exchange for a full and complete release of all claims brought against Bank of America in this multidistrict litigation.

Aaron, your timing is impeccable as always.

"Most Effective" Ed Davis Lawsuit Profiled in Toronto Star!

Hi kids, well that was actually a pretty interesting football game.

And by that I mean the massive "Tron" halftime reenactment, the 2008 nostalgia (Usher?), that creative version of the national anthem, and the emasculating moment when Cameron Diaz hand fed popcorn to A-Rod during America's biggest and most-watched sporting event.

That, plus Richard Lewis!

Good times.

Speaking of good times, I see that one of the DBR's "Most Effective Lawyer" nominees, Ed Davis, gets the love in a profile of the decades-long case that brought Ed right to the precipice of the promised land -- just like Moses and/or the Steelers.

Oh well, there's always next year.