To the Moon, Gleason!

OlsonbitesGleason

In a follow up to the response to order to show cause heard 'round the world, SD FL bankruptcy Judge Olson -- surprise -- didn't seem to like the tone of Gleason's response:

Because Gleason has repeatedly raised arguments unsupported by law or the record and engaged the court in a disrespectful tone, the court finds that Gleason’s behavior demonstrates bad faith supporting the imposition of sanctions under the court’s inherent authority.

The Court reserved on the appropriate sanction to be imposed and will be holding another hearing.

Someone posting as Kevin C. Gleason made a reference to Proverbs 27:17 in our comments section -- I suspect Kevin will need to refer to the Good Book a few more times before this whole thing is done.

Randazza Enters Lynn Dannheiser/Surfside Dispute.

Marc Randazza's law firm comes to the defense of Surfside bloggers who have been criticizing Surfside City Attorney Lynn Dannheiser and her recommendation to hire Gerry Houlihan.

Lynn's speech denouncing bloggers is already a must-see (part one is above).

Marc's work -- including his epic takedown of Glenn Beck -- is much admired in these parts, and I'm glad to see his firm helping out.

Lynn's letter to Marc's firm is offbeat, to say the least.

It starts by saying she's never heard of these guys and maybe they're related to a restaurant in Coral Gables?

Always a respectful way to begin.

Check out Randazza attorney Jason A. Fischer's reply, which has all of the trademark Randazzoa snark:

As a final point, we are obviously not affiliated in any way with Randazzo’s Little Italy restaurant in Coral Gables. Though we are well acquainted with that establishment’s quality cuisine. We presume that you were simply trying to make some kind of joke – one which nobody found particularly amusing, but one which was quite illustrative of the clear failure on your part to appreciate the seriousness of the charges that are being leveled against your employer. We trust that, should you continue to advise Town Commission on matters of constitutional compliance, you will crack fewer jokes and more volumes of case law.

Ouch.

The Royal Kiss

Take Your Child Someplace Other Than Work Day.

Sorry for the serial posts, but this just in from an opinionated, truth-telling wine nut:

Patrick J. O'Connor Thinks It's OK To Use an iPhone.

There are few debates I find less interesting than iPhone/Blackberry, but then again not everyone agrees that analyzing how two separate teams of writers could independently come up with The Munsters and The Addams Family at the exact same time remains one of the more puzzling questions of our age.

Still, Patrick J. O'Connor has a strong opinion on whether using an iPhone makes you look like a frivolous, pleasure-seeking lightweight:

Yet O'Connor adds that the type of mobile device one uses can still play an important role in how other people perceive you. "I think there has been a perception in the legal community that the BlackBerry is a more professional device," he says. "Traditionally, the iPhone was [seen as a device] for gaming and entertainment applications, and the BlackBerry was the device you really do business on."

But O'Connor notes that perceptions often change over time, and that devices that once suggested a degree of unprofessionalism can suddenly become not only acceptable, but popular and desirable. "The majority of attorneys that I deal with day in and day out now seem to have iPhones, and there seems to be no problem with that," he says. On the other hand, attorneys thinking about using a bargain or obscure gadget brand may still want to think twice about the acquisition before straying from the pack.

"Obscure gadget brand"?  Heavens forbid!.

Get me the McDonalds of smart phones, or get me nothing at all.

(BTW, I have a feeling Scott Rothstein would not approve of Patrick's goatee!)

Whatever.

I seem to have The Munsters on the brain today, guess that means I'm "straying from the pack":

Joe Klock Has a Problem With Magistrate Judge Brown's......Language!

Simply amazing(!):

4.  The continual use of demeaning and insulting language in Court orders when dealing with Plaintiffs and their counsel evinces a continual prejudice against them inappropriate for the United States District Court.

Does anyone have any idea what he's talking about?

I also like this passage:

To have to scramble in the midst of trial preparation to turn around a detailed response in two days is unnerving.  To then have a judge say that the deadline was sort of fluid is, to borrow the Court's phrase, "amazing."

Hey, that's my line!

Defense Attorney on Cell Phone Search | Evidence Suppressed

Cell Phone Search Suppressed

Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Search and seizure law can apply to cell phones. Lately cops have been searching the phones and calling them a Search incident to arrest. Sometimes cops claim they need to search a phone for the safety of the officer. One court just ruled that a cell phone seized incident to defendant's arrest posed no risk to officer safety. The scope of a search has been limited, since a cellular telephone is not a container that could hold weapon. Sometimes police justify a search claiming that evidence will be destroyed. A court just ruled that once a phone was seized, there was no longer risk that defendant could destroy evidence in phone. The court concluded that a warrantless search of contents of cell phone was unlawful and a Motion to Suppress was granted.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Defense alleged an unlawful search of the Defendant's cellular telephone including: texts, pictures, the call history, and/or observations made by Officer. Testimony showed cop "found the Defendant's cell phone while searching his person at the scene, but then later examined the cell phone further at the police station while the Defendant was still being processed. Officer Clark testified that he found text messages regarding the sale of cocaine while he was looking through the Defendant's phone."

Court ruled, "When an officer arrests someone who has a cell phone in their possession, here may very well be reason to suspect that the phone contains valuable information, particularly in drug-related arrests. The call logs and address books could help link a defendant to a particular drug transaction and could provide the identities of other persons involved in the illegal activity; however, these are exactly the types of situations where probable cause could be used to obtain a warrant. The reality is that most information stored on a cell phone will remain there long enough for a warrant to be secured and that numbers “lost” from recent call lists are readily obtainable from the service provider. Cell phones are outside the ambit of the search incident to arrest exception's reach because of their capacity for storing vast quantities of intimately personal data. If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits. This intrusion cannot reasonably be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a warrant can be procured."

The Court's Ruling on the Cell Phone Search is Here.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Source: FLWSUPP 1805GLAS


Criminal Defense Attorney / Lawyer

Third DCA Reverses Order Appointing “Co-Parenting Therapist”

The Third District Court of Appeal today reversed in Sotero v. Sullivan, specifically overturning a non-final order appointing a co-parenting therapist.  Because the Order delegated authority to make binding decisions and impose monetary sanctions to the therapist, and waived the confidentiality of communications with the co-parenting therapist and other therapists, it was reversed and remanded.

Second District Reverses Final Judgment on Several Grounds

The Second District Court of Appeal issued its ruling today in Fortune v. Fortune, in so doing reversing the lower tribunal for characterizing an advance from the Husband’s business as a marital debt, for failing to award at least nominal permanent alimony to the Wife despite her entitlement to it, for assigning dependency exemptions to the Husband without providing for waivers from the Wife or making the exemptions conditional on current child support, and for failing to restore the Wife’s maiden name despite her request.

Fourth District Court Reverses Private School Tuition Order

The Fourth District Court of Appeal issued its opinion today in Grillo v. Clay, reversing the lower tribunal for its failure to hold an evidentiary hearing before modifying child support to include a private preschool tuition obligation, and pointing out that the order was defective as well for conditioning the Father’s exercise of timesharing on his payment of this new obligation, thus conditioning visitation rights on the payment of child support.

Mark Gold Talks About Other Lawyers Wearing Diapers.

You know what I always say, don't knock it 'til you try it.

3d DCA Watch -- Professor Swan, RIP.

Sad day inside the bunker.....

Austin Bldg. v. Rago:

This will sound crazy, but apparently there are contractors in Coral Gables who may not be fully licensed.

Swan v. State Farm:

Professor Swan, RIP.

Judge Schwartz writes in special concurrence:

Like the trial judge, I am disconcerted by a situation in which Professor Swan’s estate receives the exact amount of UM coverage in return for an increased premium that he would have had if he had not paid it. However, after a long and arduous search, I have been unable to find a principled way to avoid that result.  The applicable statutory and case law is just what the majority says it is.

You meant a great deal to a great many of us, and you will live on in the hearts and minds of the many thousands of lawyers you mentored over the years.

The Mark Gold Strip Club Complaint Has Arrived!

Oh goody and all I thought I was going to receive this morning was some lousy old Hawaiian birth certificate.

I like the part where Mark reserves the right to seek punitive damages....

Judge Gold Blasts Governor Scott on Everglades Restoration!

Judge Gold unleashes both barrels and rips Governor Scott (though he's not alone) for the State's destruction degradation "restoration" efforts to save the Everglades:

There is no possibility of reversing the damage that has been done to the Everglades, and there is only the chance to preserve what remains in its current state. This is nothing new to the parties. I have set forth the extensive procedural history of this case and litigation over the Everglades, the utmost importance of the Everglades as a national treasure, and the dire need to act immediately in my prior orders. See e.g., [ECF Nos. 323, 404]. I take this opportunity now to once again reiterate and incorporate by reference the significant efforts made in those orders to emphasize just how imperative it is for the parties to focus their efforts on making real and actual steps and act on their promises and representations. In order to effectuate this Court's prior and final orders, and to avoid allowing the parties to frustrate any opportunities to do so, I have determined that a key component of this matter through the means of the permitting procedure, must now be a focus of the EPA. To not find in this manner will simply amount to sanctioning the repeated failures of non-action by the parties.

 Order here.

Oh Rick Scott, you are truly our King Midas in Reverse.

"All Pending Motions DENIED As Moot" Merely Scrivener's Error!

 Stearns Weaver is on a roll.

In the wake of Judge Ungaro's BankAtlantic order comes this order from Judge Lenard, upholding sanctions awarded to Stearns Weaver for discovery violations in a case that was otherwise dismissed.

I found this part interesting:

Nor did this Court’s Order Dismissing Case moot the pending Motion for Sanctions.  Federal Rule of Civil Procedure 11 motions for sanctions are collateral to the original proceeding and therefore may be considered after the action is no longer pending. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); Montgomery & Larmoyeux by Montgomery v. Philip Morris, Inc., 19 F. Supp. 2d 1334, 1335 (S.D. Fla. 1998) (Gold, J.) (district court may award attorney’s fees following remand in a separate order). The phrase “all pending motions are DENIED as moot,” as written in the Court’s form Order of Dismissal, is merely a scrivener’s error that should not preclude Defendants from continuing to exercise their prerogative to move for sanctions.

I'm always fascinated by things like this.

I agree Rule 11 sanctions are collateral and can be considered after the action is concluded, but what to do with the form order and the boilerplate language denying all pending motions as moot?

Is it sufficient to dismissively term it a "form Order" and "merely a scrivener's error" or do the words in an Order, form or not, have their unambiguously plain effect?

And how should that analysis inform us when we deal with other boilerplate language in other form documents that purport to have legal consequences?

Finally, if the words "DENIED as moot" are of no legal significance, then why are those words always there in the first place?

I hate scriveners!

Your Tuesday Morning Round Up.

Hi kids, big news -- Gwynne Young wins the Florida Bar run off!

Oh I'm kidding, the big news down here, broke by David,  is Gene Stearns convincing Judge Ungaro to grant his 50(b) motion and throw out the jury's verdict against BankAtlantic.

Guess it really was the worst trial Gene's ever seen.

Does this vindicate the overall approach to the litigation by the defendant (which just posted a $22.9 million loss this quarter)?

Hard to say as we're somewhat in uncharted territory, though it's a major concession by the Judge that things could have/would have/should have proceeded differently.

In other news, Glenn Garvin thinks NYT readers are deviant liberals who love big black c*%k.

Hey, I just report this stuff!

(I'm joking, he just randomly selected a few books to highlight the average content of the NYT Sunday book reviews.)

Interesting New Case?

To my friends at the DBR, Riptide, Herald or anywhere else for that matter, please go to 73 West Flagler and pull this one for me -- gotta be pure gold (rush):

Mark S. Gold
v.
Turntable Entertainment and Production Co. dba Gold Rush
4/22/2011 11-12307CA13

Unfair and Deceptive Trade Practices Act. The defendant, a strip club, served the plaintiff, a lawyer, so much alcohol that he became "temporarily unconscious, and further to the extent that he had a complete loss of judgment, rational thought, or the ability to enter into lawful contracts or agreements." Then the defendant charged his credit card $18,930 for "goods and services."

Pro se

Stop and Frisk

Every day, potential clients come into my office claiming that their arrests should be thrown out because they were illegally searched. The scenario is almost always the same: the client was walking down the street or driving in his car. He was told to stop for some reason by an officer, patted down, and illegal substances were found in his pocket. The client was then arrested for the substances, which the officer wouldn't have ever known about had he not stopped and frisked the client. Clients are often surprised to find that even though the officer didn't have a warrant, most of the time judges hold those searches to be perfectly legal. Why? Enter the Supreme Court in Terry v. Ohio.

In 1968, the Supreme Court held in Terry v. Ohio that because police officers face a lot of dangerous situations, they are allowed to "stop and frisk" anyone they are reasonably suspicious is committing, about to commit, or has just committed a crime. While it makes sense to give police officers some protection on the streets from purportedly dangerous criminals with weapons, the standard to stop and frisk is extremely low: an officer needs only "more than a mere hunch" that a crime is/has/was occurring.

Police officers can stop and frisk you for almost any reason, and they do - especially in high crime areas and minority communities. When an officer is writing his report, he'll say that he stopped you because you were acting strangely, you were in a high-crime area, it was late at night, you were loitering, you were hiding behind something, or any other number of behaviors deemed "suspicious." He'll say that he frisked you because he was concerned for his own safety, he didn't have backup, you were evasive, you were bigger than him, or any combination necessary to make the frisk (and any evidence found as a result) legal under the eyes of the law. Anything found during the frisk that is illegal gives the officer probable cause to make an arrest. This can turn a walk to your friend's house into a night in a jail and an extensive legal battle to clear your name.

Police encounters can be scary and confusing. Many people do what they are told by an officer, even when they don't have to, simply because they do not know their rights or are too nervous to remember them. Unless you are being detained, either by a show of force or a show of authority, you are free to walk away from a police encounter. The best way to determine if you are free to go is to ask! "Am I being detained or am I free to go?" The answer will be clear. If you aren't being detained, carry on with your day. No need to stick around, unless you really have a desire to chit chat with police officers on duty.

If, however, the officer tells you you are being detained, or he has the blue lights on in his patrol car, or he throws you up against a wall or the ground or his patrol car, it's a safe bet that you are being detained. The detention could very well be illegal, but if you find yourself in such a sitation: don't resist. Resisting can only make the situation worse for you. Let your lawyer fight it out later on in court.

When you are being detained, the officer can legally pat you down for what he believes in his "training and experience" to be concealed weapons or contraband. Some people think that they will be making things easier on themselves if they announce their possession of illegal substances right away. Doing the officer's job for him isn't making things easier on you - it's making it easier for the officer to arrest you and easier for the State's Atttorney to convict you. Anything you say can and will be used against you. Telling the officer you have weed in your pocket is a confession and voluntary confessions make defending you a whole lot more difficult. So, just remain silent if you are being stopped and frisked.

[You should also know that you don't have to pull out your pockets for them - that's their job. Emptying your pockets for a police officer is the same as consenting to a search. Don't do it; you have the right to refuse searches.]

Officers know what they need to say for a stop and frisk to be found legal. But remember, just because they write the buzz-words in their reports doesn't mean that your case is lost. It is up to your lawyer to challenge illegal searches. While Stop and Frisk laws (also known as Terry Stops) give law enforcement broad authority on the streets, knowing your rights and utilizing them can help your attorney use the law to your advantage to fight back in court.

How to Get Arrested for Racing | Use Baseball Diamond for Track

Criminal Mischief Attorney

Defense Attorney and huge racer has been looking for opportunities in dirt track racing. Never thought of this - "motorcycles were observed by officers [on baseball diamond] . . . Officers were able to stop all of the motorcycles before the riders could flee. " So says the Tampa Tribune.

"There were no injuries, but both the infield and outfield were damaged and will require repairs before it can be used for play, according to the report." 

If you have been charged with CRMS3000 CRIMINAL MISCHIEF $1000 OR MORE Call Me - Defense Attorney Tampa at 1-877-793-9290 and tell me your story.

Form Code: CRMS3000

Florida Statute: 806.13.1B3

Description: CRIMINAL MISCHIEF $1000 OR MORE

806.13 Criminal mischief; penalties; penalty for minor.


(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.


3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

One Way to Answer an Order to Show Cause.

Gleason Response

Anyone remember SD FL Bankruptcy Judge John K. Olson?

Well on March 31st he entered an order to show cause against Hollywood bankruptcy attorney Kevin C. Gleason, reported at 2011 WL 1355300 (Bankr.S.D.Fla).

Kevin's response is an interesting read, to say the least.

The opening paragraph is a doozy -- so much for mindfulness...

(It would have made a really great first draft!)

To my loyal tipsters -- what happened at the 4/20 hearing?

Video | Open WiFi Port Gets A Visit From Feds

Wi Fi Bust

Florida Computer Crime Defense Attorney / Lawyer notes a Florida guy got a visit from the Feds, after a long distance wireless antenna was used to access his network on the 12th Floor of a Tampa Bay area condominium. The guy the Feds eventually busted was on a boat in the bay and was eventually indicted.

This Tampa Bay story has become national news. Check out the video below.


Call me Toll Free 1-877-793-9290 if you or a loved one have questions.

Good Typography Friday

It's Good Friday and kids are out of school, offices are closed, and people are thinking about the Lord and the long weekend.

What better time to talk typography?

Do you know or even care what type font, spacing choices, or font size you use in briefs?

If "New Times Roman" is your default get the hail out of here.

Luckily, the 7th Circuit provides a wonderful, easy to understand tutorial on how best to present your briefs from a typographical perspective, offering useful tips on proportional spacing, serifs, and all other kinds of wonky technical junk that writers get into but everyone else yawns about.

Perfect for a day like today.

I like this piece of advice:

Typographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach—different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.

Read good books?  Oh man, I have to do that too?

Speaking of which, there are some fine writing tips offered in this new local blawg -- check it out.

Happy holidays!

Florida Supreme Court Gives Hank Adorno a Handful.

Yes, kids, the 43-page opinion is here, disregarding the referee's recommendation of public reprimand, and handing Adorno the severest sanction short of disbarment.

The Supremes endorsed the particularly harsh language of the 3d DCA, and detailed a rather sordid and regrettable tale of misconduct, ethical lapses and, frankly, greed.

It's not a pretty picture.

Law Updates for April 15, 2011

Rogers, 36 FLW 725, 4th DCA, Protective sweep - Officers responded to a neighbor's 911 call reporting men and women arguing, throwing things, and being violent, entered the residence without a warrant when they heard the male voice cursing and ordering someone not opening the door.  Trial court erred in denying the Motion to Suppress cocaine and drug paraphernalia seized from the locked bedroom within the residence.  The search of the premises were impermissibly broad

Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident.  Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease.  No error in denying motion to suppress of gun found in plain view in the bedroom.

Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure.  Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)

Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial.  Although def failed to waive speedy trial in this case, speedy trial was not an issue.  Good case for this issue where judge forced the new lawyer into trial quickly.

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

Listen to Local Lawyers Give Impressions!

Boy I miss Fred Travelena.

I mean, no one rocked the Tonight Show or the Jerry Lewis Telethon with a better impression of Sammy Davis or Wayne Newton than big Freddie, RIP.

Well if you want to hear local lawyers do some of their favorite impressions then tune in at 5 p.m. on Tuesdays on AM radio 880:

"The Lawmen Show" is a call in talk show featuring three attorneys with their live impressions of legal issues and business news, sometimes controversial and sometimes it's just fun. 

Sounds fun -- here's my impression of Iqbal!

And here's my impression of Venetian Salami!

The attorneys are careful to explain to callers that they are only offering their impressions during short phone calls...

Right, do not confuse their wicked impression of Judge King with the real thing!

3d DCA Watch -- 420 Day in the Bunker!

It's 420 day so let's get hydroponically situated and take a deep whiff of what the bunker is smoking swilling:

Simon v. Maldonado:

Interesting opinion dealing with standards for post-verdict juror interviews.  Court reverses Judge Platzer order granting new trial after concluding there was an insufficient basis to conduct the interview in the first place. 

Anderson v. Upper Keys Business Group:

Two groups battling over the right to hold a nonsense event "celebrating" the nonexistent birth of the Conch Republic.

I say they take two cheeseburgers in paradise and settle this dispute the way any self-respecting Parrot Head would -- by opening a garish, soul-sucking corporate tourist trap designed to weakly mirror any kind of authentic dining experience.

TBOM Mortgage v. Brown:

Judge Schwartz gets into the "dismissive quote marks" trend and chastises the unnamed trial judge for the "personal disinclination" that apparently led to the trial court's refusal to foreclose on some lady's house.

Although the plaintiff mortgagee in this “routine” home foreclosure case clearly established its right to a default against the mortgagor, the trial court refused to enter one, giving only what must be called the spurious reason that the non-military affidavit was in some unspecified (because non-existent) way “insufficient.” In fact and in law, the affidavit, which was in the universally accepted form, and was supported by evidence which clearly established that the defendant, who was personally served at his home in Miami-Dade County, was not in the military service, was legally impeccable....[I]t is established and we repeat that the trial court is not free to refuse to follow the law because of some personal disinclination or otherwise.

Not so fast, or should I say "so fast," sayeth Judge Salter:

First, the petition was untimely. The essence of the petition is a claim that the trial court departed from the essential requirements of law in its ruling—not that it has failed to rule despite a clear legal duty to do so.  The petitioner’s claim thus should be treated as a petition for certiorari rather than a petition for mandamus. Judicial notice of the circuit court docket in this case reveals that the order denying the motion for default was docketed the day it was signed by the trial court, October 26, 2010. The petition was not filed within thirty days of the order as required by Florida Rule of Appellate Procedure 9.100(c).

I love that -- bringing out the fancy-pants "rules" governing this appeal, citing one that would arguably go to the Court's "jurisdiction" to even hear the case!

The Judge goes on to point out that the word "may" is in the rule, and thus it's not mandatory but in fact "discretionary":

As the creations of lawyers, judges, rules committees, and Justices, rules should be presumed to appropriately differentiate “may” from “shall” and to record in the published comments any thoughts or inferences to the contrary.

Finally, Judge Salter addresses the "personal disinclination" issue:

Finally, the petitioner’s assumptions regarding the trial judge’s thought processes are not supported by a transcript and are, in my view at least, unprofessional.

Hold on -- was it only the petitioner who wrote about the trial judge's "personal disinclination"?

Check out footnote 5 -- it's a "doozy."

Yay -- Someone in Hyderabad Likes Me!

Why else would I wind up with so many expertly-written law firm press releases?

This time we even have partially-literate quotes from the "official spokesperson of the firm":

Drucker Law Offices is one such legal firm that has handled lots of accidental cases in favor of the victim. The official spokesperson of the firm elaborates on the situation with his comment “There has been a threatening rise in the number of accidents in Miami in the last couple of years. Most of them have resulted from negligence which is an offence under the law. Our primarily role is to make sure that the victim is compensated for all the damages and the trauma along with any associated claims that should be handed out by insurance companies.”

 Yes -- they have in fact handled "lots of accidental cases"! 

(Some cases may have even been filed on purpose.)

The unnamed official spokesperson also helpfully elaborates on what their "primarily role" exactly is.

In conclusion, when it comes to "claims that should be handed out by insurance companies" you cannot go wrong with Drucker Law Offices, or so says their official spokesperson.

Good Pesach, the Sequel.

Because the Haggadah is such a facacta crazy document, we get to read it all over again tonight.

(BTW, I've said it before, but the recently restored Arthur Szyk-illustrated Haggadah is a work of shining brilliance and beats the hail out of the Maxwell House edition my family has been using for decades.)

Enjoy the suffering!

Tell Office Supply to Order More Post-Its -- Mr. Levine Is About To Head Home!

I have long contended that concerns about "texting while driving" are really concerns about "other people texting while driving."

I say this because every morning and evening on my way downtown I see just about everyone texting and checking their emails, deep in phone conversations, looking at websites, watching movies(!) and typing away like maniacs.

I don't personally object to this practice, assuming you are competent at performing more than one task at the same time and know when to focus more on the road at the appropriate moments.

Of course we know many people who fail at this, and who fail at driving even without any distractions whatsoever.

But not Kluger Kaplan partner Todd Levine, who is all about the driving while post-its:

It’s 7 p.m. and Todd Levine saunters out of his office, opens his car door, flips on his Bluetooth, and starts his nightly routine of sticking Post-It notes to his dashboard. As he heads north on the highway, one by one he peels off the Post-Its with phone numbers scribbled on them and makes the return calls.

 “I conduct my business and by the time I hang up, I’m in my driveway,” Levine says.

Levine, a Miami trial lawyer, has a similar routine in the morning. “By the time I get to my office, I have done at least 45 minutes to an hour of work.” 

Question for Cindy -- was Todd really "sauntering" out of his office?

Maybe he just had a lot of post-its on his fingers he needed to put on his dashboard? 

Actually, Todd's driving habits are fairly routine, nonobjectionable even, and we've all seen way way worse.

I'd like to see Todd incorporate his post-it practice into his official firm bio:

Todd uses his analytical skills and creativity to find the winning angle other lawyers might overlook. Sometimes that means honing in on that one key piece of buried evidence that will make or break a case. Other times, that means formulating the one legal argument that will give clarity to an otherwise murky dispute.  Even more other times, it just means picking the right post-it and knowing how to Bluetooth successfully without killing anybody on the way home.  This is not as easy as it sounds.

See, I really should do more law firm marketing.

Gun and Drug Evidence Suppressed

Gun Suppressed

Tampa Defense Attorney recently studied a court ruling where a gun and drugs were thrown out after an illegal pat down was ruled  a warrantless search. In this Tampa court, the trial judge ruled a Pat down search of a defendant was lawful. The Appeals panel ruled otherwise, finding the officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.

The defendant was walking along highway and did not comply with an officers' requests to keep his hands out of his pockets. That fact alone was not sufficient to establish reasonable suspicion. The cops saw no weapons and did not notice bulges in the defendant's clothing to indicate that he was carrying a weapon.  Motion to suppress firearm and drugs discovered during pat down should have been granted.

Case Excerpt: "This case presents the issue of two conflicting interests: the Fourth Amendment right to be free from unreasonable searches and seizures and the ongoing concern for officer safety in an increasingly dangerous profession. But even though the facts of this case reveal an alarming result of the pat-down—a gun—we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search. See D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA 2010) ("The success of the search . . . is not now and never has been the test to be applied.")"

. . .

"For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous. See Howell v. State, 725 So. 2d 429, 431 (Fla. 2d DCA 1999). But here, the only justification provided by the officers was the fact that Dawson refused to comply with their requests to keep his hands out of his pockets. That fact—standing alone—was insufficient to establish reasonable suspicion. The comment made by one officer that he believed Dawson "could have contraband or a weapon" was simply unsupported by any identifiable objective facts to lead him to that conclusion. Because "routine patdown searches based on general concern for officer safety are not constitutionally permitted," McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008), the officers lacked reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred by denying the suppression motion."

The Complete Pat Down Opinion is available for download here.

Source: 36 Fla. L. Weekly D804a

Good Pesach, Plebes!

I Sent You a Draft Motion -- See, We Met and Conferred!

I've noticed that Magistrate Judge Goodman has a bug up his....is very particular about the Local Rule requirement that the parties meet and confer before filing a motion.

Here he is succinctly explaining the reasoning behind the rule, with which I totally agree:

Strict compliance with Local Rule 7.1(a)(3) is very important. The non-moving party does not always oppose relief sought by the moving party. E.g., id. at 1301 (noting that the non-moving party in that case “did not, for all practical purposes, object to the relief being sought in three of the motions”). Compliance with this rule may save the parties the time and costs associated with filing and responding to a motion. Wrangen, 2008 WL 5427785, at *1. This rule is also a mechanism for alerting the Court to whether a motion is opposed, allowing (in the case of unopposed motions) the Court to expedite its ruling and to avoid spending its own time unnecessarily considering issues that are mooted by the agreement.

So do you think sending a draft motion to the other side before filing complies with the Local Rule?

Let's see:

In their original Motion for Costs, Defendants provided the following:

Defendants certify that a good faith effort to resolve this motion by agreement has taken place. A draft motion and schedule of costs have previously been sent to opposing counsel.

This certification and the purported effort to confer it describes does not comply with Local Rule 7.1(a)(3). Local Rule 7.1(a)(3) is not satisfied merely by sending a copy of a draft motion to an opposing counsel. See Royal Bahamian, 744 F. Supp. 2d at 1299 n.2 (“‘Simply sending a letter without further follow-up does not constitute the type of effort to engage in a pre-filing conference anticipated by Local Rule 7.1’”) (quoting Wrangen, 2008 WL 5427785, at *1). Providing a draft motion to opposing counsel could be part of a good faith effort to confer, but in order to satisfy the rule this way, for instance, counsel must attempt to discuss the motion, and then wait a reasonable amount of time (as dictated by the situation) for a response before filing. In addition, my standard discovery procedures (which are technically inapplicable here) require an actual conversation.

Defendants’ certification does not even allow me to conclude with any certainty that Plaintiff’s counsel received the draft motion. Sending a copy of a motion does not guarantee that Plaintiff’s counsel actually received, let alone reviewed, considered, and declined to agree to any of the requested relief before Defendant filed it.

It goes on from there, but I'm guessing that's a no.

Announcing the All-New SFL Whole Wheat Pasta Bolognaise Foodtruck!

I've decided it's about time I jump right in and tap into the food truck mania that is sweeping South Florida.

And, like any good marketer, I am focusing on a niche market.

In fact, my niche market is exceedingly small -- I plan to park my truck in only one location, 1000 Brickell Ave, and I plan to serve only one item: whole wheat pasta bolognaise.

Why, you may ask, have I focused my new food truck business so narrowly?

Well let's just say I have my reasons, but I assure you they have absolutely nothing to do with certain food rituals observed by certain attorneys at La Loggia:

American Bar Association members and committee heads Melanie Damian and Peter F. Valori were there too, ritually ordering the whole-wheat pasta bolognaise while working hard to sway Florida Bar Business Law chair Michael J. Heiger into steering a portion of his leadership efforts toward the bar organization’s national arm. Heiger, apparently familiar with the payoffs of preparation, arrived at lunch armed with one of his young associates, whom he seemed to be offering up in his place.

"[R]itually ordering the whole-wheat pasta bolognaise"?

Thanks for the tip!

BTW Mike -- nice touch to offer up an unnamed and not-worthy-of-being-mentioned-in-this-article young associate as a sacrificial lamb -- we are talking about the ABA, after all!

Someone Please Buy Andrew Jackson a Postage Scale!

Delray Beach lawyer Andrew Jackson, who recently moved into beautiful new offices in Delray Beach, suffered a devastating consumer purchasing defeat at the hands of the evil empire Office Depot:

But lawyer Andrew Jackson couldn't find the postage scale he needed on a recent visit to the Delray Beach store, though he bought other office supplies.

He also wasn't able to get a document double-bound on his last visit. Jackson asked the store manager about it and was assured the store now had the needed equipment.

This shall not stand!  

I am reaching out to the South Florida legal community to correct this absurd miscarriage of injustice.

You can purchase Andrew a nice new postal scale here, or here, and tell him that South Florida lawyers know how to get together for a truly just -- even righteous -- cause.

Now if we could only do something about these nudnicks in Tally royally mucking up the court system.

Spencer Aronfeld Now a Mohel?

Is anyone looking for a fresh face to perform at your son's bris?

I know this guy.......

The Doomsday Cometh.

Let's see, what famous events occurred on May 3rd?

Oh, you had the Herald in 1987 reporting on Gary Hart's dalliance with Donna Rice, ending Hart's otherwise promising bid for the Presidency.

The Luftwaffe bombed Exeter back in 1942.

And of course General Lee decisively defeated the Union Army, which began their withdrawal on this date in 1863 in the bloody Battle of Chancellorsville.

Happy times, to be sure.

But nothing to compare with this:

This case will commence on Tuesday, May 3, 2011 at 9:30 A.M.  This case will proceed that week and the first three(3) days of the following week.  This case will resume Monday, May 16 through Wednesday May 18th, and then continue Monday, May 23rd.

Ok, I can't even follow that crazy trial schedule, but I'm pretty sure everything will proceed smoothly and without incident.

May God have mercy on our souls.

Welcome, ABA Section of Litigationites!

Are you getting your CLE credits over at the Fontainebleau today like a good little corporate litigator?

That's right -- all the ABA Section of Litigation lawyers who convinced their firms to pony up the dough are enjoying coffee and shaking off hangovers over on Miami Beach even as we speak.

Boy I sure hope Lexis/Nexis has a booth -- and they do!

Well, try to have some fun anyways.

And remember:  if you wind up having too much fun, you'll want to scan this guy's card into your smart phone.

(Just watch the video and you'll see what I mean.)

Law Updates for April 8, 2011

Roussonicolas, 36 FLW 644, 4th DCA.  Trial court reversibly erred in ruling that the transcript of sworn testimony exonerating the def given by co-def at def's bond hearing was inadmissible.  Co-def was unavailable to testify at trial, invoked 5th A. The State had the opportunity to cross co-def at the bond hearing and, given exculpatory nature of the testimony, the State had similar motive at bond and at trial to discredit the co-def's testimony and show it was not worthy of belief.

Trapp, 36 FLW 652, 4th DCA.  Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction.  Def did not open the door when he said he told the victim that if she lied she would be charged with perjury.  State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both.  Plus Allen charge needed as jury was out a long time deliberating.

Robinson, 36 FLW 655, 4th DCA.  Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene.  Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis.  Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness.  Error compounded by prosecutor when she said he took the stand and "did not say anything."  New trial.

Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent.  Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.


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

Real Headline -- Miami Lawyers to Give Away Free iPad on Facebook!

Oh the iPad, when will it ever end?

Is there any more deadly a discussion than the relative benefits of an iPad, and how lawyers can possibly use them productively?

Strike that, on second thought I would add the pros and cons of a particular school your kid may or may not go to, which food truck truly serves the best fish taco, and any topic of any kind that includes the word "webinar."

Add Facebook to the mix and you have flatlined as far as I'm concerned.

In walks the PI lawyers at FerrerShane:

Over on Facebook we're giving away a free iPad to one lucky winner as soon as we hit 1,000 fans. (So click "like" if you want a chance to win!)

Why are a bunch of Miami attorneys doing a free iPad giveaway?

In all honesty -- and this is the only truthful answer we could give you -- we want to get our name out there as far and wide as possible. What business doesn't? And Facebook is a great way to do that.

Plus, we can't think of many devices on the market today that are better than the iPad. Tablet computing is steadily improving and many lawyers are beginning to incorporate tablet computing technology into their law practices. In fact, we predict traditional laptop computing as we know it today will become obsolete over time.

Which brings us to the second reason we're giving away an iPad on Facebook: we understand the appeal these devices hold for both lawyers and general users. The iPad keeps people up-to-date and - if used correctly - efficient and productive.

Do you "like" this approach, or does it make you want to "poke" somebody in the eye?

Feel free to let us know and we may give away an old Selectric typewriter, which I understand is simply revolutionizing the modern legal practice.

3d DCA Watch -- Why I Love State Court.

Do you remember when the bunker was just a mere glimmer of cementitious materials in some young lawyer/visionary's eye?

Well even if you can't remember way back when judicial toilets were not bolted for your personal protection, please join the Resplendent Ones on May 13th as they tell old war stories and reminisce about what things were like back in the day (let me guess -- more white males?).

Onward....

Golden Gate v. Levy:

I don't like to see lawyers getting sued, but this case is a near-perfect example of everything that can go wrong in state court.

You have a motion to dismiss a party granted based on the submission of record evidence (see footnote 7).   

This point was affirmed on appeal btw!

You have a client allegedly showing up at a depo with a suitcase full of never-produced documents.

You have a claimed failure to respond to discovery requests or to produce witness or exhibit lists.

You have a lawyer filing a "conditional notice of appearance."

You have a motion to reinstate the complaint, which was granted, then hearings on reconsideration of the order reinstating the complaint.

Then you have a legal malpractice suit.

Best part is the case now continues against what is essentially a dead entity.

God rest ye merry gentlemen (see, I'm getting ready for the old-timers luncheon!).

3d DCA Drop Box Reinstituted.....Kinda!

It appears the DCBA has listened to our whines concerns and sorta kinda maybe put together a new 3d DCA drop box:

As a courtesy to attorneys and any customers filing documents for the Third District Court of 

Appeals (3rd DCA), a drop off box will be established in room 137, The handling of the contents of this box will be as follows:

• Drop off box for 3rd DCA pleading will be located by the entrance door of room #137.
• A clerk in the New Suits Unit will pick up this box at 4:00 pm daily and review the contents to ensure that all pleadings are directed to the 3rd DCA.
• Pleadings will be placed in a postal carry bag labeled 3rd DCA.
• A Mail Center clerk will pick up the postal bag at approximately 10:00am the following business day.
• The Mail Center clerk will deliver the postal bag to 3rd DCA at approximately 2:00 pm

.  Please be aware that all documents deposited in the Clerk's drop off box will not be delivered
   to the 3rd DCA until the following business day. Any time sensitive documents should
   be filed directly at the 3rd DCA located at 2001 SW 117th Ave., Miami, Florida 33175

Is it just me or is there something needlessly pedantic about this announcement?

"New Suits Unit," I'm pretty sure that was a glam band from the 80s.

And I'm glad the specified "postal carry bag" will be labeled "3rd DCA" as opposed to, say, MetroZoo, though sometimes one can easily be confused with the other.

Quick Question -- Can I Incorporate All Prior Allegations Into Each Subsequent Claim for Relief?

Beetle Shotgun

Let's discuss the acceptable level of crushed "common warehouse beetle" in your average serving of Similac baby formula.

I say 14 beetles per serving is acceptable, you say 10 is just right for our little tyke.

Ain't the free market grand?

But poor plaintiff's counsel had some trouble getting his beetles out of the box, so to speak, and Judge Cohn had to explain a few things:

Here, the eight-count Amended Complaint incorporates all of the “foregoing allegations” by reference into each subsequent claim for relief. See, e.g., Amended Complaint at 13. In other words, Plaintiff has filed a shotgun complaint. See Ferrell v. Durbin, 311 Fed. App’x 253, 259 (11th Cir. 2009) (“In shotgun style pleading, the complaint incorporates all of the general factual allegations by reference into each subsequent claim for relief.”). The Eleventh Circuit “has had much to say about shotgun pleadings, none of which is favorable.” Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n. 54 (11th Cir. 2008) (“[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times.”); Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (“This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Anderson v. D. Bd. of Trs. of Central Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). Consequently, the Court will dismiss Plaintiff’s Amended Complaint, in its entirety, for this reason.

This drives me insane.

I mean Brian Tannebaum-with-crappy-internet-lawyer-marketers level insane.

Is there any reason -- ever -- to do this?  Even by accident?

Personally to me it's worse than a typo, it's sort of an intentional effort to purposely look foolish.

Congrats, you've succeeded!

Hey Ma, I Finally Made the Pages of Adult Video News!

Like many of you, I have my daily morning reading rituals -- the Herald, the NYT, WSJ, Adult Video News.....

Oh, I see "PRON:  The XXX Parody" finally hits the shelves on Thursday -- it's really about time.

Hey, what do you know -- here's a story that features our own Stuart I. Grossman, defending local porn producers Reality Kings against allegations of using an underage worker, in a story first broken by New Times' Gus Garcia-Roberts:

“Plaintiffs allegations attempt to paint a picture that Defendants somehow took advantage of or conspired to take advantage of C.S. Nothing could be farther from the truth,” he wrote. “Defendant has been dragged into this lawsuit because of the misrepresentations C.S. made regarding her age to various state and federal agencies and Defendant. Specifically, C.S. procured a valid Nevada driver’s permit with her picture on it which said she was nineteen and identified her as Tyler Chanel Evans.” She also fraudulently procured a social security card in the same name, the motion contends, and has since been arrested in Nevada for, among other things, possession of a false license.

But for this criminal activity by C.S.,” the motion states, “she would never have been able to mislead defendant.” The motion then outlines a litany of problems with the plaintiff’s use of Florida statutes that fatally undermine the complaint, and asks the court to dismiss the complaint with prejudice.

You can read the complaint filed by Weston's Mark A. Glassman and Stu's motion to dismiss (which is more like an sj motion) here.

The case is before Judge David Miller.

What Do You Think of Magistrate Judge Torres?

You can vote by text message here.

Oops, that is for American Idol -- sorry, my bad.

I miss you Pia!

Actually, you can find evaluation forms and more details on Judge Torres' reappointment process here.

(My guess is the Judge will be -- and should be -- a lock.)

Votes comments are due no later than May 2, 2011.

Who is the Mystery Lawyer From South Florida Known as "Tiki Al"?

There is a Miami lawyer named "Al," hanging out at Fort Lauderdale's legendary Mai-Kai, who is hopelessly, shamelessly addicted to 50s era Polynesian kitsch:

But during the Hukilau in June, everything's pumped up a notch.

That's when Fort Lauderdale gets the vintage-clad crowds, cocktail seminars, tiki vendors galore and a constant soundtrack of retro surf and lounge music. During a recent Hukilau, DJ Lounge - aka Laura Taylor - conjured a bubbly Barbarella world, while the Stolen Idols - fronted by her husband, Drew Farmer - played lush jazz "exotica". My wife, in her tallest go-go boots, stomped and bent to Los Straitjackets' hyperactive renditions of King of the Surf, Sleepwalk and The Magnificent Seven. "You know what this tiki culture is?" a Miami lawyer friend, Al, asks during an introspective moment by the pool. "I think it's like goth for middle-aged people."

Oy vez rock-a-hula baby!

Who could this mystery "Al" be?

Hmm, I have no basis at all to suggest this, but could it possibly be Al Cardenas?

Alan Kluger?

Alan Fertel?

C'mon people, help me out here!

(Someone has suggested A[..]lberto Jordan but I can't confirm that at this time.)

Pentagon Lawyer "Apologizes" to Seminoles Over Al Qaeda Analogy.

Listen up, kids, this is what happens when you are straining to justify exemptions to the Constitution for certain classes of really bad people -- you wind up citing precedent from other unlawful or excessive periods of history driven by populist rage -- it could have been Korematsu but in this case it was that whole slaughter of the Seminoles thing:

“Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.”

Oops!

Ok, so you are saying the Seminoles were like al Qaeda because they both waged war against U.S. targets unlawfully but also "the very way in which" they waged war which "itself violate[d] the customs and usages of war."

Seems pretty clear.  If that's what you want to say, then own it.

Let's see how they walk this one back:

“I regret any larger suggestion that the Seminole Tribe should be equated with al Qaeda,” Johnson wrote in an April 7 letter.

Right!  I just meant it in the very narrow sense that they are exactly alike in the very way in which they waged war unlawfully, a way which itself violated the customs and usages of war.

Other than that -- totally different.

Johnson pointed out in the letter that war court prosecutors had written the military commissions review panel “clarifying the legal point they originally intended to make” – that the analogy “could have benefited from greater precision” but was a valid precedent.

"The morality or propriety of General Jackson’s military operation in Florida is irrelevant,” they wrote.

Hmm, when is the morality or propriety of a military operation ever totally irrelevant?

That's like citing Dred Scott purely on a question of civil procedure, or Ted Bundy on Evidence but acknowledging the guy may have gotten some other things wrong.