Supreme Court Adopts New Withholding Form

The Florida Supreme Court adopted a new form, Florida Family Law Form 12.996(d), called a Florida Addendum to Income Withholding, meant to be filed along with IWO orders, form OMB 0970-0154.  Comments are accepted for sixty days.

Getting Biblical With Spencer Aronfeld!

Passover Plague #7 visits the good offices of Mr. Aronfeld:

Heneni here I am!

No, seriously, I am standing right here:

Sublime Friday

It's really beautiful outside, isn't it? Work is slow, I have no money, but I can't help feeling like I have it all.

Which is a funny feeling when I compare it to the plight - or flight - of Guma, who apparently had it all, but will soon have nothing. I keep thinking: the lawyers are going to blow through his 100 million so fast no one will know what him them, his wife will have a rapid fall like the Kimster, and their four kids are the ones who will suffer. (BTW...that Downtown Julie Brown is prone to hyperbole, isn't she?)

Speaking of soccer, Italia!!!!

South Florida Lawyers knows his tomatoes. Sugar IS essential for a fragrant, flavorful tomatoe. Green tomatoes taste better than red ones.

And well, it turns out this blog is out in front - the Herald copied the subject of our post from a week ago.

N.B.: Enjoy today.

BREAKING -- Broccoli, We Hardly Knew Thee.

Here's the most insightful analysis I've read yet of today's HCR opinion:

On the broccoli beat, Bloomberg Law’s Josh Block finds that the word was mentioned a dozen times in the court’s opinions. There were three mentions by Chief Justice Roberts, five by Justice Ginsburg and four in the dissenting opinion.

The most appetizing quotes are:

From Justice Ginsburg: As an example of the type of regulation he fears, the Chief Justice cites a Government mandate to purchase green vegetables. Ante, at 22–23. One could call this concern “the broccoli horrible.”

I suppose swlip will gloat about the Commerce Clause language by the Chief Justice, which is worrisome for the long term in that it echoes the dissent and does not bode well for future tests of federal power (unless it involves gay marriage or drug laws).

Personally, I'm just happy conservatives can go back to complaining about "judicial activism" again -- that was really starting to weird me out.

And finally, in addition to being experts in sophisticated global financial markets, tax policy, the impact of carbon emissions on arctic glaciers, and whether LeBron should have ever left Cleveland, your FB friends are all now suddenly Constitutional Scholars too.

Time to unplug for a while?

Fourth District Refuses Review of Non-Final Order

The Fourth District Court of Appeal dismissed the appeal today in Jones v. Jones, in that the appeal was directed to an order denying exceptions, which is a non-final, non-appealable order.  The Court cited Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289 (Fla. 4th DCA 2011) in support.

Fourth District Reverses Retroactive Alimony Award

The Fourth District Court of Appeal ruled today in Hollingsworth v. Hollingsworth, in so doing affirming without comment most of the issues raised on appeal, but reversing as to the amount of retroactive alimony awarded to the wife.  The trial court found that the Appellant should receive a credit for funds already paid against the alimony due, but failed to award that credit in its final calculation, and was reversed for that reason alone.

Fourth District Reverses Denial of Fees, Equitable Distribution of Depleted Assets

The Fourth District Court of Appeal ruled today in Goldstein v. Goldstein, a case in which the lower court denied fees to the wife, as well as attributing to her joint marital funds used by her during the divorce for living expenses without any finding of misconduct.  The Court found error first with the lower tribunal’s failure to make findings as to need and ability to pay attorneys’ fees, but found that even if those findings had been made it would have been error to deny the wife her fees and costs.  In addition, the lack of any finding of misconduct required reversal of the lower court’s distribution of depleted assets used for support to the wife.

3d DCA Watch -- Let It Rain?

Hey sugar, are your tomatoes wet enough?

What dirty minds you all have!

That's not a sexual innuendo, that's how people in old My-am-Ma used to refer to a heavy rain.

Sheesh.

Onward:

Miami Automotive Retail v. Baldwin:

A somewhat messed-up class action case returns for a second bite at the apple.

Vives v. Wells Fargo:

A somewhat messed-up foreclosure case gets reversed and remanded, but Judge Shepherd delivers a blistering dissent:

SHEPHERD, J., dissenting.
 
I dissent.

Was the rest of it cut off in the uploading process?

Lloyd's v. Pitu:

$700k in water damage, $25k aggregate water damage endorsement.

Guess who won?

Miami Beach v. City Pension Fund Boards:

Judge Schwartz adopts a footnote from another case thanking the lawyers involved for their briefs and excellent presentations.

Who's becoming such a softie all of a sudden??

Let it rain:

Email Service Required in September, 2012

This ruling by the Florida Supreme Court last week confirms the adoption of the new Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers).  That rule requires in part that all documents required or permitted to be served on another party must be served by e-mail.  A lawyer upon appearing in a proceeding must now designate a primary email address, and up to two secondary addresses, for receiving service, after which service must be made by email.  A lawyer or party may request by motion to be excused from this requirement, and applications for subpoenas or documents served personally are excused.  The changes become effective September 1, 2012 at 12:01 A.M..

The full text of the new rule is as follows:

RULE 2.516 SERVICE OF PLEADINGS AND DOCUMENTS
(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless this rule otherwise provides. When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.
(A) Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation of a primary e-mail address and may designate no more than two secondary e-mail addresses. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.
(B) Exception to E-mail Service on Attorneys. Service by an attorney on another attorney must be made by e-mail unless excused by the court. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2) of this rule.
(C) Service on and by Parties Not Represented by an Attorney. Any party not represented by an attorney may serve a designation of a primary e-mail address and also may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding by the means provided in subdivision (b)(1) of this rule. If a party not represented by an attorney does not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2) of this rule.
(D) Time of Service. Service by e-mail is complete when it is sent.
(i) An e-mail is deemed served on the date it is sent.
(ii) If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by a means authorized by subdivision (b)(2) of this rule.
(iii) E-mail service is treated as service by mail for the computation of time.
(E) Format of E-mail for Service. Service of a document by e-mail is made by attaching a copy of the document in PDF format to an e-mail sent to all addresses designated by the attorney or party.
(i) All documents served by e-mail must be attached to an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number.
(iii) Any document served by e-mail may be signed by the “/s/” format, as long as the filed original is signed in accordance with the applicable rule of procedure.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
(2) Service by Other Means. In addition to, and not in lieu of, service by e-mail, service may also be made upon attorneys by any of the means specified in this subdivision (b)(2). Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:
(A) handing it to the attorney or to the party,
(B) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof,
(C) if there is no one in charge, leaving it in a conspicuous place therein,
(D) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or
(E) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy must also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete.
(F) Service by delivery after 5:00 p.m. must be deemed to have been made by mailing on the date of delivery.
(c) Service; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its own initiative in such manner as may be found to be just and reasonable.
(d) Filing. All original documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other document is not placed in the court file, a certified copy must be so placed by the clerk.
(e) Filing Defined. The filing of documents with the court as required by these rules must be made by filing them with the clerk, except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk.  The date of filing is that shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.
(f) Certificate of Service. When any attorney certifies in substance:
”I certify that a copy hereof has been furnished to (here insert name or names and addresses used for service) by (e-mail) (delivery) (mail) (fax) on ..... (date) …..
________________________ Attorney” the certificate is taken as prima facie proof of such service in compliance with this rule.
(g) Service by Clerk. Service of notices and other documents required to be made by the clerk must also be done as provided in subdivision (b).
(h) Service of Orders.
(1) A copy of all orders or judgments must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial and final judgments that must be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. The court may serve any order or judgment by e-mail to all attorneys who have not been excused from e-mail service and to all parties not represented by an attorney who have designated an e-mail address for service.
(2) When a final judgment is entered against a party in default, the court must mail a conformed copy of it to the party. The party in whose favor the judgment is entered must furnish the court with a copy of the judgment, unless it is prepared by the court, with the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action.

Dear Alan Kluger: Don't Sue Marc Randazza!

The Good Randazza has all the details and links here, but my favorite has to be this letter from Kluger to Randazza, where Alan writes "[s]hame on you for continuing to assist and encourage this unscrupulous cyber bully."

Do appeals to shame really work anymore?

Guess we'll see.

Take a look at the draft complaint the big boys sent to Randazza, and judge for yourself.

Suing a lawyer for "acting in concert" with their blogger client seems like a (gargantuan) stretch, but what do I know?

Kluger's complaint against Google(!), pending before Judge Cooke, is here.

Oh, btw -- GO HEAT!!!

Ha Ha -- Florida Can't Have Its Own Foreign Policy!

You know that red-meat "law" that Rick Scott (pictured above) signed, barring companies from bidding on state or local contracts if they have ties to Cuba?

Well you may have heard that Judge Moore found it only violated a slew of major constitutional provisions:  the Supremacy Clause, the Foreign Affairs Power, the Foreign Commerce Clause, plus it is inoperative on its own terms.

On the other hand, Judge Moore found that the law did not in fact violate the prohibition against quartering troops in private homes!

So sort of a split decision.

Nice win for Raoul Cantero and James Moye out of Maitland.

You can read the preliminary injunction order here.

Now let's get back to other important election year legislation, like banning Sharia law (a personal favorite).

Ferrer Shane Isn't Afraid of Your Negative Review.

These PI guys who like to hug themselves aren't afraid of your negative social media reviews.

How do I know?

Because they said so right here:

It's the age of social media, but most lawyers aren't into it. Why is that? Perhaps it's because they're afraid--afraid of tarnishing their image by having a Facebook page. Afraid of the time and effort it takes to be online. Afraid of a negative review.

We're not.

We're on Facebook. We're on Twitter. We're even on Instagram, posting pictures like nobody's business. (The truth is, we like this stuff.)

We don't get too worked up about image. 

Sheesh, that is a relief.

Ok, let's take a look at their Instagram photos:

 What beautiful files!

(BTW, I'm pretty sure they are both facebooking.)

You know what, I like these guys -- you are welcome to submit a guest post, fellas!

Norman Braman says, "Huh?"

N.B. This is exactly what Joe Klock said when Steel failed.

For Whom the Bell Tolls

I am all for dressing up and role playing, but once that stuff starts interfering with your professional life, you have hard choices to make.

Just ask St. Pete attorney Frank Louderback who is defending Jerry Alan Bottorff in a federal criminal murder-for-hire case. A self-described "perennial contestant in the Ernest Hemingway Look-alike contest," Louderback moved Judge Merryday to recess the specially set federal death penalty case in Tampa so he could make it on time to Sloppy Joe's Bar in Key West.

Come on, kids! Lighten up! I understand a person's life is in the balance, but who wants to miss all this fun?



Let's see what Judge Merryday had to say.

"At his most robust, Hemingway exemplified the intrepid defense lawyer:

'He works like hell, and through it... He has the most profound bravery...He has had pain[] and the kind of poverty that you don't believe[;] he has had about eight times the normal allotment of responsibilities. And he has never once compromised. He has never once turned off on an easier path than the one he staked himself.'

Perhaps a lawyer who evokes Hemingway can resist relaxing frolic in favor of solemn duty.

Or at least, 'Isn't it pretty to think so?'

Good luck in next year's contest. DENIED."

Spanky, spanky.

Order Denying Louderback Time Off

N.B. I'd much rather see a Margaux, Mariel, or Dree contest

Fourth District Affirms Timesharing Decree

The Fourth District Court ruled this week in Culbertson v. Culbertson, a difficult case focused on the lower court’s decision to permit timesharing to the Husband without the restrictions sought by the Wife as a result of the child’s medical needs.  The Fourth DCA affirmed on the basis that there was sufficient evidence supporting the finding that the Husband was prepared for any medical emergency and aware of the child’s needs, but with a dissent from Judge Warner disputing the existence of that evidence.

Fourth DCA Reverses for Departure from Agreement

The Fourth District Court of Appeal ruled this week in Simon v. Simon, reversing the lower tribunal’s order which disposed of the parties’ collection of art.  The Husband appealed on the basis that the parties’ premarital agreement provided for a different distribution, and the Fourth District agreed that the clear and unambiguous language required a different result than the one ordered.

Special Friday 3d DCA Watch -- Somebody Pissed Somebody Off Edition.

To learn more, click here.

Judge Carnes vs. Magistrate Judge Goodman -- The Citation Wars.

Here you go, the trademark Carnes introduction (with a homage/challenge? to Magistrate Judge Goodman):

People who compete against each other in the same business or profession don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.” But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

Very curious -- note how the Judge casually, unobtrusively cites the great Jackson Browne song "Lawyers in Love" without an elaborate, digressive 300-plus long footnote/citation/educational string.

Now let's edit in a standard Magistrate Judge Goodman song reference and see how it reads:

People who compete against each other in the same business or profession  don’t have to dislike one another. A few years back there was even a song lyricizing about “Lawyers in Love.”1 But no one has ever written a song about “Car Dealers in Love,” and if this case is any indication, no one ever will. These two car dealers are bitter business rivals in overlapping markets. One of them used a software program to compete more aggressively with the other one over the internet. That program produced a multiplicity of mini-websites, a host of hard feelings, and of course litigation. This is the appellate part of that litigation.

1 -- For a musical reference to "lawyers being in love," see "Lawyers in Love," a song sung by Jackson Browne. Recorded in Los Angeles, the song was written by Jackson Browne and reached the #13 position on the U.S. music charts in the summer of 1983.  http://www.allmusic.com/song/lawyers-in-love-mt0005091017 (last visited June 21, 2012). Focused on Cold War concerns and a distrust of the perceived superficial, empty values of the Reagan Era, the song contains the following lyric: "God sends his spaceships to America, the beautiful They land at six o'clock and there we are, the dutiful Eating from TV trays, tuned into to Happy Days Waiting for World War III while Jesus slaves To the mating calls of lawyers in love" http://www.oldielyrics.com/lyrics/jackson_browne/lawyers_in_love.html (last visited June 21, 2012).

Hmm, which do you like better?

Finally -- Mandatory Service By Email!

Our  Supreme Overlords fine jurists in Tally have finally approved mandatory service by email:

[N]ew rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (―e-mail‖)), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail. The rule does permit several limited exceptions to this requirement. A lawyer may file a motion to be excused from e-mail service, demonstrating that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office.

Ok, I want to know what lawyer could possibly lack both an email account and internet connection?

Got it!

3d DCA Watch -- Just Another Tricky Day.

Hi there, it's cold and damp and the wind is really picking up (and that's just inside the bunker!).

Let's get right to it:

Union Carbide v. Aubin:

Judge Farina $6.6 million jury verdict in asbestos case handled by Jim Ferraro overturned:

Because Aubin failed to present any evidence demonstrating that the defective design of SG-210 Calidria caused Aubin’s harm, peritoneal mesothelioma, we reverse the trial court’s denial of Union Carbide’s motion for a directed verdict as to Aubin’s design defect claim. In addition, because the jury instructions given by the trial court were inconsistent with the law in the Third District and in effect directed the verdict in favor of Aubin, we reverse and remand for a new trial as to the warning defect claim consistent with this opinion.

Interesting -- even though the plaintiff's requested special instruction was "technically accurate," the Court found it "misleading" without supplemental explanation.

Bert v. Bermudez:

Yet another opinion in the Lewis Tein/Miccosukee Tribe dispute ongoing in Judge Dresnick's courtroom, this time finding no basis to disqualify the judge.

Interesting that Judge Shepherd concurred in result only.

I've said this before -- these guys need to bring in outside counsel to handle this kind of stuff on their behalf.

(BTW, I'm available!)

When Fascism Comes to America, it will be as cruciferous vegetables

There is a tension in the air. No, I'm not talking about the new Breaking Dawn trailer. I'm talking about ACA, the Affordable Care Act aka Obamacare aka Romneycare. The BIG ruling should be out soon.

Will it stand? Will it be severed – the mandate struck down but the rest left intact? Or will the whole thing be tossed out? Overall, I'm an ACA fan. It's not great but it was the best we could get with a split congress and conservative Democrats calling all the shots. 


I'm optimistic that the plan will stand.

Why? What are the alternatives? For all the convulsing on the right about European style socialism, this is THE conservative health care plan. It is the plan Bob Dole put up as an answer to Hillary Clinton's health care reform. It's the plan Romney pushed for and passed in Massachusetts. It is not single payer. There is no public option. All other possible plans are to the left of this.

We need reform. Our current system is morally and financially bankrupt. Presently, we have a health care system that structurally excludes the sick. Access to health insurance is limited to the healthy. Think about that. This is Alice in Wonderland. This is a fun-house mirror. Down is up, and left is right. It's a sick joke until you're the one being denied. Then, immediately, all funniness ends. 

Prior to recently enacted ACA reforms, having insurance was no guarantee of protection. Insurance companies could unleash teams of researchers to find evidence of fraud, like undisclosed teenage acne, to justify cancelling your insurance. That practice is now history and it needs to stay history.

If you examine the act issue by issue, ACA provisions are popular. Keep your kids on your insurance? Check! Eliminate exclusions based on preexisting conditions? Check! Provisions that cover preventative care? Check! The unpopular part is the insurance mandate, and that's the part that makes it all financially feasible. Strike that part down, and costs will shoot upward.

It's happened before. Back in the 90s, Washington state enacted reforms very similar to the ACA. As with the ACA, the mandate was the unpopular part and that one part was eventually repealed by the state legislature to disastrous results. Premiums costs exploded and insurers began fleeing the state. You can read a full account of this in The Washington Post here. Is that the nightmare scenario that SCOTUS is going to plunge the country into? I think not.

So what about striking the whole thing down? It's clear that many of the provisions are perfectly proper and constitutional. If the entire law is struck down there is no "more" conservative plan waiting in the wings to fix this mess. All viable alternatives are to the left of the ACA.


If increases in premium costs continue along the current curve, within 20 years annual premiums will exceed average family income. The system will become completely untenable long before then. A great man once said, “unsustainable systems cannot be sustained.” If this comes to pass, expect pressure for a single payer system or at least a public option to grow rapidly. And that is something the for profit insurance industry would find even more unacceptable than ACA. 


That is why I think the law will stand.

So if they can force you to buy health insurance, can they force you to buy broccoli? They tried this with Chris Christy. He just stuffed the broccoli with sausage, dipped them in pancake batter,  and deep fried it all in lard. Sometimes you can't get what you want. Sometimes you can't get what you need. Sometimes you just get what you deserve.

Just Because.

Brings back fond memories.....

Last Call - Are You The Best Closer in Miami?

How did I miss this?

The confidence that comes with turning 40 (and perhaps the money and power, as Tony says) may put you in contention to be The Best Closer in Miami. The irony is, however, that 40 also brings the paunchy middle, hair loss, and testosterone deficiency that renders you suited to close one thing, if you're still trying at 40 to be the Best Closer in Miami: your bar tab in a bad place. So those of us over 40 should act our age and take every opportunity to mentor the younger generation and allow them to benefit from our mistakes.

Legal Services of Greater Miami knows this.

Which is why this great organization through its GenNext initiative will hold its First Annual Legal Eagle Closing Competition June 30. You may access the announcement here, but it reads:

"The competition, spearheaded by retired Judge
David Gersten and Jane Muir, is open to all attorneys under 40
practicing in the 11th Circuit and admitted to The Florida Bar for
less than seven years. All proceeds from the event will benefit LSGMI.

“This competition is the ‘great equalizer,’” said Gersten. “Big firms,
little firms, or solo practitioners have the opportunity to show what they’ve got, strut their stuff, and prove who is the best closer in the county.

The University of Miami School of Law will host the one-day competition,
which will be judged by panels of sitting judges and private practitioners.
Young lawyers who compete will receive facts and materials 48 hours before
the competition begins, and learn which side they will take on the morning
of the competition. After the final round, a perpetual trophy contributed by
Bilzin Sumberg will be presented to the winner at a victory celebration and
networking reception for judges, competitors, and supporters.

To register, click here.
For more information, contact Muir at (305) 665-8088."

This is an absolutely great idea and great event for a great cause. The Miami legal community should ensure that it becomes a well attended competition that fosters the great tradition that is Miami Trial Lawyers. If you try cases anywhere outside of Miami, even in the deep south, you know that our trial lawyers are second to none. Whether civil or criminal, plaintiff or defense, prosecutor or defense attorney, we shine. I believe this is because we try more cases, our adversaries are talented, and our judges by and large love to try cases and to have talented trial lawyers appear before them.

Boy, am I manic today. I miss my anger.

N.B. So cool, South Florida Lawyers will have their very own much-coveted "Stanley Cup," which I am sure will come with appropriate safety protocols to avoid the perpetual trophy winding up in the wrong hands or in a hot tub somewhere.

Summer is Officially Here!

That's because my mishpucha Spencer has declared it so:

A few notes:

1.  I've said this before, but try to get the names and details of the people you are introducing before introducing them.

(Seriously, it's nice to see Spence hiring and promoting local law clerks -- welcome to the profession.)

2.  Awesome shirt/tie/suit combo -- be gone dark colors, this is Florida in the summertime!

3.  What else did I miss?

Roger Clemens Not Guilty

Roger Clemens Not Guilty

Feds Need Performance Enhancement Roger Clemens walks. Can't get Lance Armstrong in February, even though his bike club is going after him and his several Tour de France victories for use of performance enhancing substances. Let's see if the cyclists can do what the feds could not.

NYT: Clemens Is Found Not Guilty of »

The former pitcher Roger Clemens was found not guilty Monday of lying to Congress in 2008 when he said he never used steroids or human growth hormone in his baseball career.

Gulf Blvd, Indian Shores, Florida

Federal Pretrial Diversion Eligibility Criteria

Federal Pretrial Diversion

The Eligibility Criteria for the DOJ Pretrial Diversion Program have been updated.  The disqualifier for having a history of substance abuse (alcohol or drugs) has been removed.

Federal Pretrial Diversion Eligibility Criteria

According to the Feds, "Pretrial diversion (PTD) is an alternative to prosecution which seeks to divert certain offenders from traditional criminal justice processing into a program of supervision and services administered by the U.S. Probation Service. In the majority of cases, offenders are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed; unsuccessful participants are returned for prosecution."

The four disqualifiers are now -- The U.S. Attorney, in his/her discretion, may divert any individual against whom a prosecutable case exists and who is not:

1.  Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;

2.  A person with two or more prior felony convictions;

3.  A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or

4.  Accused of an offense related to national security or foreign affairs.

Federal Pretrial Diversion a Possibility? Call 813-222-2220 .

Source: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/22mcrm.htm#9-22.100/s/Jeff

"Ruiz Law Centre" in Foreclosure?

And Rudy Aragon is on the hunt:

A Miami office building controlled by John H. Ruiz, an attorney with his own TV program, is facing foreclosure over a $10.7 million mortgage.

First Citizens Bank & Trust Co.    (NASDAQ: FCNCA) filed the foreclosure lawsuit on June 8 against 5040 Corp., which lists Ruiz as its president. His law offices and his La Ley TV operations are based in the 104,307-square-foot building at 5040 N.W. 7^th Street. The nine-story building was completed in 1986. The foreclosure action also targets a neighboring 18,731-square-foot parking lot.

The building is named the Ruiz Law Centre.

First off, I had totally forgotten that Rudy was now at White & Case.

Secondly, I'm sure this is a misunderstanding.

It's just $10.7 million, give the guy a break!

Law Porn: The Adventures of Perky Ramerez the Judicial Assistant

Greetings readers,

did you have a good weekend? I know I did, with one small setback. Note to self; regular mushrooms in the bottom drawer, magic mushrooms in the top drawer.

Hey Rick Scott, those freaks was right when they said you was dead. The one mistake you made was in your head. How do you sleep at night?

What do lawyers, soldiers, and gay teens all have in common? All are at higher risk for suicide than the general population. Kentucky Supreme Court Justice Bill Cunningham has some moving thoughts about why that might be. For my two cents, problems that seem huge and insurmountable shrink quickly if you step back from them and take a breath. You need to be breathing to do that.

Please, Don't Hurt Yourself. Call a coworker. Call a friend. Call a family member. Or call the National Suicide Prevention Lifeline at 1-800-273-8255.

On a happier note, looks like my gay marriage will soon be valid in another state. Go Maine!

Some cases are perfectly titled, take "Loving v. Virgina" for example. Perhaps we can add this one to the list.  "FunnyJunk v. The Oatmeal" may also be one of those perfectly titled cases in that it both sounds absurd and intertwines allegations of fake Twitter accounts, cyber vandalism, and bestiality. Come on people, isn't this why you got into law? I read through it a couple of time but frankly it's just bringing the mushrooms back on me.

Some good advice about how to stay out of jail here.

As for Perky, I'll get that story posted as soon as I can find something that (a) can get pass the censors, and (b) retains it's artistic integrity. It's all about the art you know.

Godwhacker out.

Call Me Deacon Blues.

Hi there!

Go Heat??

Is this not the most ridiculous suit you've ever read about -- this guy has been capturing University of Alabama football players in various states of triumph and exaltation, and for this he gets a Lanham Act and trademark suit:

Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama (the “University” or “Alabama”). The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and crimson and white colors. Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.

In 2002, the University told Moore that he would need permission to depict the University’s uniforms because they are trademarks. Moore contended that he did not need permission because the uniforms were being used to realistically portray historical events. The parties could not reach a resolution, and in March 2005, the University sued Moore in the Northern District of Alabama for breach of contract, trademark infringement, and unfair competition.

This serves the guy right for venerating 'Bama, I guess.

No good deed goes unpunished.

I blame Nick Saban.

Shady Love

Mormon Up Your Sexy Time

Religious Tolerance

What does someone who goes by the handle “Godwhacker” know about religious tolerance? Everything. I tolerate all y'all's screwy religions. Oh I love Judaism, bagels and lox YUM! But it loses me at circumcision. Come on folks, that's there for a reason! Crucifictions, stonings, virgin births, I whack it all back at 'em.

But it has recently come to my attention that some people are unwilling to vote for Mitt Romney because of his Mormon beliefs. As a gay American, I am shocked to find this type of senseless bigotry flourishing in our country this far into the 21st century where we are a more tolerant and enlightened people. Right.

Our traditions forbid religious tests for holding office, and we should not impose them ourselves. Please, be good Americans! Don't vote against Romney because of his Mormon beliefs. So what if the Mormon Church considered all black people damned until 1978? Who cares if they Baptize the dead into their religion? We say “heaven” they say “Kolob” ~ it's really no big deal. We wear boxers, they wear magic underoos. Which candidate would you rather have a beer glass of milk with? It's not like we're from different planets.

If you're going to vote against Mitt Romney, do it for the right reasons. The fact that he has held every possible position on every possible issue seems like a good one to me. Vote against him because the austerity he advocates is doing so very very well for Europe. Besides, I'm sure there are plenty of legitimate reasons to have Cayman Island bank accounts that don't involve tax avoidance. I don't know, I wasn't there.

In the meantime, if you're like Me and aggressively anticipating the joys of a Romney presidency, you'll want to Mormon up your sexy time with a few of these FABULOUS blessed knickers. They go great with leather, and from what I hear the hot wax can't hurt you. Win win!

*The views expressed in this post are solely those of the author.

Lawyers Supporting the Arts?

You don't often think of lawyers in our town as driving the burgeoning non-profit arts scene, yet look at this Miami Herald article, which quotes Mike Eidson, chair of the Arsht Center Board of Directors; Dennis Scholl, of the Knight Foundation, and active patron Ali Mora -- all lawyers.

Mike even says going to the arts is good for the soul -- and he's right:

“Going to attend cultural events at places like the Arsht Center is a good thing for making people feel like they’re part of a viable community, part of an exciting community,” he said. “They don’t want to just sit at home. They’re not just going to bars.’’

Especially strip bars, according to recent headlines.

Read more here: http://www.miamiherald.com/2012/06/11/2843885/nonprofit-arts-scene-generated.html#storylink=cpy

How to Win Friends and Influence People

"I'm not here to ask for sympathy or forgiveness or to throw myself at your mercy," ... "I did not run a Ponzi scheme. I didn't defraud anybody."

That's Allen Stanford speaking at his sentencing hearing today. According to the AP, he went on for 40 minutes, portraying himself as a scapegoat and blaming the government for "tearing down his ...empire."

The judge sentencing him to 110 years.



N.B. I leave the criminal law stuff to DOM, but isn't it kind of weird to not read much about the lawyers who counseled Stanford, the Bankers with whom he did business and who held his money and moved it around, the accountants, or the Stanford Financial Management?

Rick Scott Likes to Litigate

Man, Justice Cantero is in demand, eh? And by all sides, it would seem.

I remember reading somewhere that the Republican party promotes judicial restraint. Doesn't that necessarily include an aversion to running to court to try and get your way, every time you don't get your way?

Republican Governor Rick Scott hired Justice Cantero (and our friend, great lawyer and all around good guy Neal McAliley) to appeal an order entered by Leon County Circuit Judge Jackie Fulford that struck a new and improved retirement system that includes a requirement that public employees contribute 3 percent of their pay to the $126 billion Florida Retirement System.

There appears to be some pretty standard fare in Justice Cantero's brief (you can read it here)- appropriations powers, exceeding jurisdiction, contract and property rights.

Justice Cantero's creative legal reasoning regarding Scott's law violating public employee bargaining rights caught my eye. He argued in his brief that local police and transit workers bargained for a 3.1 percent pay increase after Scott's law was passed, "to offset the pension contribution."

Union Lawyer Ron Meyer offered a concise reponse: "They bargained wages," he said. "They didn't bargain pensions." Nice.

In her decision, Fulford wrote that upholding the law "would mean that a contract with our state government has no meaning and that the citizens of our state can place no trust in the work of our Legislature."

How do you argue with that last part, exactly? Particularly because in 1974 Florida's pension plan was converted to a "noncontributory system" for workers.

Conversely, Scott contends ITS NOT FAIR THAT I CAN'T GET MY WAY! Florida's public employees should be required to contribute as a matter of fairness because nearly all other states and private employers who provide pension benefits require their workers to contribute. (Uh, no they don't.)

And fear mongering. He's also expressed doubts about the future soundness of the retirement system.

Which is odd because according to the Pew Center on the States, Florida "is one of only three states to have more pension assets than accrued liability - funding 101 percent of its total pension obligation, well above the 80 percent benchmark the U.S. Government Accountability office says is preferred by experts."

Random drug tests for state workers, requiring public employees to contribute their pay to the state retirement system, perhaps violating public employee bargaining rights....be careful what you ask for...



N.B. I applaud the naivete civility demonstrated by opposing counsel Ron Meyer who, in response to a question regarding Justice Cantero serving as Chairman of Justice Pariente's campaign for retention on the Supreme Court, stated that he had no concern about the relationship. "They're just above that." Exactly. Like when a litigant before Judge King hires Bobby Martinez to represent it.

3d DCA Watch - Summer is Here

SouthFloridaLawyers split. He took his winesack, frisbees, and 8-tracks and said he needed to clear his head.

Apparently he is not the only one.

Two - count 'em, TWO - decisions in civil cases today from The Bunker. (In fairness, neither is a PCA.)

Garcon & Robinson v. AHCA

Guy suffered a devastating gunshot which rendered him totally and permanently disabled. Medicaid paid the "concededly reasonable" amount (can you guess who authored this opinion?) of $244,590.57 for his past medical expenses. Guy received a million dollars from the tortfeasor stipulated to represent payment for past and future medical expenses and nothing for any intangible elements of damage for which Medicaid would not have been entitled to reimbursement. (DOH! Who stipulated to THAT!?) The trial court determined the amount of Medicaid's lien on the million, to be $244,590.57. Guy challenged the amount of the lien, arguing that Florida's statute is pre-empted by federal law which requires a more touchy feely and fair determination.

Judge Schwartz ENTIRELY DISAGREED. Further, he found the trial court's determination, AGAIN UNDISPUTEDLY, IN COMPLETE ACCORDANCE WITH FLORIDA LAW. And thirdly, Florida law is more what you'd call guidelines than actual rules, and the legislature may make up stuff as it goes along, otherwise known as "special rules" not subject to pre-emption by federal law. Welcome aboard the Black Pearl.

Affirmed. (Judge Jordan, Fred was correct.)

Beggi v. Ocean Bank

Condos and foreclosure: You knew this was coming.

Writes Judge Salter:

We decline to permit Beggi to turn the mortgage lender’s lawful exercise of its remedies into a game of “keep away,” whereby boilerplate and sweeping requests for production of records, fact-free affirmative defenses, and dilatory tactics are employed to impede the lender. Beggi invested in the condominium units at an inauspicious time and has not weathered the foreclosure storm. His appeals are dismissed, and the cases are removed from the schedule for oral argument.

Spanky, spanky.

Tom Spencer on Merit Retention and Assaults on Judicial Independence.

Not since the days of George L. Metcalfe has the Florida Bar News -- the best paper no one has personally ever paid any money to read ™ -- lit up its letters page with strongly worded complaints about the Bar's merit retention "education" program.

In walks our friend Tom Spencer, who sayeth thus:

I support the retention of the three justices of the Supreme Court of Florida, even though I also frequently disagree with their opinions. But I am astonished at the hypocrisy of our Bar leadership in spending our Bar fees for a statewide “education program” on retention, which is, in reality, political institutional pandering. This hypocrisy takes on even greater dimensions, when it is compared to the silence of our Bar leadership in the face of the vicious, unprecedented assault on the judicial independence of the Supreme Court of the United States.

The historic browbeating by President Obama and many members of his party, including the chairman of the Senate Judiciary Committee, is something every lawyer should protest. But not a sound can be heard from either our leadership or the many leaders of the ABA who are Florida Bar members.

Our involuntary Bar association is quick to spend our money when liberal judges are under attack — silent when conservative judges are being skewered by liberal politicians, lawyers, and operatives who want to fix an unprecedented case.

Every judge should be defended or no judge should be defended. We members should be howling angry at this hypocritical maneuvering on our dime. The money spent on voter “education” would be better spent supplementing our needy pro bono programs. 

I thought, particularly as a Constitutional law professor, that Obama knew better when he made that one, single remark about popular legislation etc.  And he promptly walked it back.

(Perhaps I missed the rest of the assault?)

But what about all the historic attacks by conservatives over the last five decades -- hail, the entire tenure of the Warren Court -- over "activist judges" and their evil social legislation rulings from the bench?

Ho hum, yesterday's news I guess.

I think I know how swlip feels about all this, but how about the rest of you?

"At Some Point in Time, Mr. Jimenez, We Are Going to Have to Talk About It."

That's Judge Cooke to TD Bank lawyer Marco Jimenez, over sanctions motion #5 ("I'll have the #5 with egg drop!") which may involve up to 2600 alerts on Scott Rothstein's accounts that may not have been turned over to plaintiff's counsel David Mandel.

Oy.

That brings up a rant -- is it just me, or is there a general erosion in our communal sense of responsibility to perform acts of civility?

I'm not referring specifically to issues such as turning over bad documents, but more generally gestures like opening doors for frail or pregnant women, or helping someone get their carry on baggage above their seat, small acts like that.

We see that often in our interaction with other lawyers, a general trickling-down of incivility that inevitably winds up affecting how you practice or deal with others.

I recently read of a civility project among elected officials:

 In 2009, author Mark DeMoss launched a Civility Project asking every sitting governor and member of Congress to sign a pledge of civility agreeing to three statements: “1. I will be civil in my public discourse and behavior; 2. I will be respectful of others, whether or not I agree with them; and 3. I will stand against incivility when I see it.” Amazingly, only three elected officials signed it—Sen. Joe Lieberman, Rep. Frank Wolf, and Rep. Sue Myrick. 

Funny thing is, I think Joe "The Weeper" Lieberman is mostly a jerk!

In other news, Wargo French has moved into the old Richman Greer space:

Atlanta-based Wargo French launched its Miami office last August, headed by former long-time Greenberg Traurig shareholder Lori Sochin. Ten associates have been hired including Simon Ferro Jr., a former Lewis Tein lawyer.

The 50-lawyer firm, which also has a Los Angeles office, targeted Miami for growth based on client demand, said managing partner Joe Wargo. Wargo French is a full-service law firm focusing on complex commercial litigation, financial services litigation, labor and employment, class action litigation, creditor's rights and bankruptcy, commercial real estate, construction, general corporate and securities law, among other specialties.

Ok, sounds like a good firm and I wish them well, but what a great name -- "Wargo French" -- that's got to be a character from an old Coen Brothers movie?

Judge Tjoflat's Magic Transcript Ride.

I love it when Judge Tjoflat gets all technical, like when he insists that you need a transcript of a district court ruling in order to appeal.

Here he is dissenting from a denial of en banc review, where he calls out the panel for reversing a provisional, pretrial ruling from Judge King (excluding an expert) because the appellant failed to transcribe the actual trial where Judge King ruled the same way -- except this time during trial:

The panel assigned to hear Rosenfeld’s appeal overlooked the fact that Rosenfeld’s argument for reversal was based on a provisional pretrial ruling and treated the argument as if it were addressed to the District Court’s trial ruling. The panel then concluded that the District Court erred in excluding the proffered evidence, that the error was not harmless, and that the District Court should have granted Rosenfeld a new trial. In overlooking what Rosenfeld had done, the panel failed to recognize that Rosenfeld, in basing her new trial motion on a provisional pretrial evidentiary ruling rather than an evidentiary ruling at trial, had effectively waived her argument that the District Court abused its discretion in not granting a new trial. Had the panel recognized this fact, it would have rejected Rosenfeld’s appeal out of hand.

I get it Judge -- there is a difference between a pretrial and trial evidentiary ruling.

(Enough with the underscoring!)

Four Kings?

Wow that was a great Heat game DCBA installation dinner on Saturday:

Trial lawyer Garrett Biondo is the incoming president of the Dade County Bar Association. He’s also a Miami Heat season-ticket holder who refuses to miss a big game.

But when it comes to Saturday’s Game 7 — arguably the biggest home affair in Heat history — he can’t be both.

At the same time the Heat and Celtics decide the Eastern Conference championship Saturday, Biondo will be about a mile south for his swearing in — at the Bar association’s black-tie gala, held at the Mandarin Oriental.

Think he’s disappointed? Imagine the 300 or so others in attendance who aren’t being recognized at the event. 

What grit, what determination -- Russomanno shoots, she scores!

Actually, congrats to the new officers at DCBA -- see you all in Oklahoma, USA:

Read more here: http://www.miamiherald.com/2012/06/08/2839958/game-7-mania-grips-miami-heat.html#storylink=misearch#storylink=cpy