Corporate Run -- I'm Outta Here.

I want to send a big thanks to all the firms and businesses participating in this year's corporate run.

We all know the economic environment is difficult but that is exactly why such time, energy, and money is needed, for such a good cause.

Have fun, kiddies!

SFL Caption Contest!

You kids seems to be in a captioning sort of mood, so give this one a try.

BTW, this suit strikes me as ridiculous.

Winner gets a bottle of S&S Diner's famous salad dressing!

These Are A Few Of My Favorite Things...

They were all there last night, my mischpuka!

You know, by virtue of my position I am obligated to attend pretty much all of these bar functions, which vary in quality and can be anywhere from painful to mildly pleasant depending on my mood and dry Gibson intake.

Still, I think the Young Lawyers Section puts on one of the better judicial receptions, with a nice turnout and surprisingly good food.

The mood lighting and open bar made for perfect canoodling, and I was doing pretty well with a certain unnamed sweetie before a hulking Gargantuan showed up and blew the whole thing.

Curse you Randy Kroner!

3d DCA Watch -- Trail of Tears Edition

Hi kids!

Blah blah blah that glorious time of the week, blah blah coffee-swilling, blah blah concrete bunker, blah blah blah resplendently robed, blah blah judicial utterances, blah here we go, blah blah our patented 3d DCA Watch:

How nice, I see that our friendly 3d DCA took their act on the road and played a gig at St. Thomas School of Law:

On April 14, 2009, the judges of the Third District Court of Appeal held oral argument at St. Thomas University School of Law in Miami Gardens, Florida. Chief Judge David M. Gersten, Judge Linda Ann Wells, and Judge Barbara Lagoa served on the panel. The law students had an opportunity to observe oral argument. After oral argument, the judges entertained questions about the cases and judging in general. A luncheon followed.

But wait a minute -- no Judge Schwartz? Boy you kids really missed out!

Speaking of judges, I hope you all have been practicing like I have for tonight's big DCBA YLS Judicial Reception (hi Gisela!). Here are some phrases I have been working on --

"Yes, judge!"

"How funny, your honor!"

"I totally agree, so true!"

"Oh yes, he really is a piece of s@$t!"

How am I doing so far?

Ok folks, let's take a peek:

Brivis Enterprises v. Plinski:

How badly messed up is the law on vacating defaults? It should be a relatively simple and straightforward analysis, but for some reason it's gotten increasingly convoluted.

What's the difference between "abuse of discretion" and "gross abuse of discretion"?

How about "gross neglect" versus "excusable neglect"?

Don't ask me, I just hire the bow-tied one, Robert Glazier, and hope for the best.

Federated National v. Palenzuela:

Judge Shepherd to appellant: next time, please try to appeal from an actual appealable order. Just sayin'. Plus, when you do, I will probably rule against you.

Cheekie Investments v. Point One:

Oh Cheekie Investments, why do you tease us so? And why is my friend Sergio Pagliery representing himself?

From this per curiam opinion, we will never know.

Luckily, Magistrate Judge Garber set out some of the allegations here.

Bottom line -- Sergio, call me the next time you get an investment idea, ok?

Casa Investment v. Nestor:

God I love state court! Where else can you read a sentence like this:

On July 13, 2007, Casa served its Amended Motion for Final Summary Judgment and noticed the motion for a September 10th hearing. At that hearing, Nestor made an ore tenus motion for summary judgment based upon a statute of limitations defense, which the trial court granted.

An "ore tenus motion for summary judgment"??

Which the trial court granted??

And which was affirmed by the 11th circuit appellate division (except for Judge Reyes)??

Folks, my work here is done.

Happy Birthday, Israel!

We pause for a moment to honor Israel's independence, 61 years strong, a few road bumps here and there, but still alive and kicking.

Shalom!

Hooray -- It's Arbitration Fairness Day!

Yawn.

Rights shmights, I agree with Justice Thomas -- you and your whiny "right" to buy luxury items like a telephone or air conditioning -- what's wrong with you people? That's not what this country is about!

As usual, I think Archie Bunker summed it up best:

Archie Bunker: That ain't the American Way, buddy. No, siree. Listen here, professor. You're the one who need an American History lesson. You don't know nothin' about Lady Liberty standin' there in the harbor, with her torch on high screamin' out to all the nations in the world: "Send me your poor, your deadbeats, your filthy." And all the nations send 'em in here, they come swarming in like ants. Your Spanish P.R.'s from the Caribboin, your Japs, your Chinamen, your Krauts and your Hebes and your English fags. All of 'em come in here and they're all free to live in their own separate sections where they feel safe. And they'll bust your head if you go in there. *That's* what makes America great, buddy.
[exits Stivic house]
Mike Stivic: [to Gloria] I think we just heard Archie Bunker's Bicentennial Minute.

Still, if you are concerned with having no access to court when you buy anything, even something as high-falutin' as a telephone, somebody is trying to do something about that today:

A coalition of 67 consumer groups, including Public Citizen and Consumers Union, will escort dozens of victims of the high costs and low awards rate of arbitrations to visit with their congressmen tomorrow during “Arbitration Fairness Day.” The all-day activities will include the unveiling of a survey of Americans who don’t like the idea of giving up their rights to court.

Arbitration advocates will no doubt come back with their own examples to show the opposite. The Chamber’s Institute for Legal Reform underwrote a 2005 poll of 609 adults who used arbitration and liked it. Two-thirds said they would be likely to use it again. But it tells little about the suckers who have the choice made for them. Only 19 percent of the people in the poll were required by contract to use arbitration, and those are the cases under fire.

Forced Arbitration

That notion seems to be lost even on members of the Supreme Court, which earlier this month ruled that a group of building- services workers who had been demoted couldn’t override mandatory arbitration to take their age-discrimination case to court. Among the arguments by Justice Clarence Thomas was that the streamlined procedures of arbitration are not a basis to consider the forum inadequate, and that arbitration’s informality “is one of the chief reasons that parties select arbitration.”

Wrong, Mr. Justice. “The parties” don’t select arbitration in these disputed cases. Only one party does.

My favorite local arbitrator, by the way, is former Chief Justice Arthur England, who is unfailingly pleasant and highly professional.

Then again, at $650 an hour, he better be.

Macy's, Are You Happy Now??

As my mischpucha know, I always have my camera ready.

Here's a pic taken moments ago of the exciting grand opening celebration of the "Paul S. Walker Urbanscape."

The buzz is electric, peoples.

"I'd Rather Not Answer That" = YES.

The inestimable Julie Kay breaks news as usual regarding the shameful effort by prosecutors in Alex Acosta's office to trap uber-lawyer David O. Markus, which resulted in an explosive $600k sanctions order by Judge Gold:

The three prosecutors themselves are appealing. Josefsberg and Pearson filed a notice of appeal for Hoffman, and Martinez and colleagues Maureen Lefebvre and Susan Tarbe filed a motion on behalf of Cronin.

Martinez said he will argue that Cronin and the others were wrongly denied the opportunity to speak at the hearing when they were sanctioned.

“They were excluded and didn’t have the opportunity to put on their case,” he said. “Just as [defense attorney David O.] Markus wants due process rights, we feel Mr. Cronin is entitled to his due process rights. It is appropriate for him to be heard by the judge.”

Gilbert has not yet filed a notice of appeal. Becerra, who moved to Greenberg from the U.S. attorney’s office, has taken the case pro bono, according to her secretary. Becerra is out of the office on parental leave.

When asked whether Martinez, a former Miami U.S. attorney, was representing him pro bono, Cronin said, “I’d rather not answer that.”

Oh man, that's rich -- was Sean so flustered by Julie's question that all he could do was say "I'd rather not answer" -- thereby answering by not answering? Was he not prepared to handle that inquiry? What's the big deal about going pro bono in the first place? (Note -- corrected, thx).

BTW, I love that these prosecutors are now pleading for due process -- which of course they deserve -- when it was apparent from the sanctions order that due process was not exactly at the top of their trial to-do list.

Also, didn't Cronin testify (lamely) for several hours before Judge Gold anyways? As the Judge repeatedly told him, "tell the truth, Mr. Cronin."

Plus, even my buddy Paul Calli gets quoted!

And, in a surprise move, so does Kendall Coffey.

Walter and Donald, sing this one out please.....

Limos for Everyone?

Several in-the-know readers have passed along an incendiary anonymous memo making the rounds among administrators and trustees regarding financial mismanagement at the University of Miami.

Thanks folks, but I'm not touching it -- it's even too hot for your humble crappy (lawsuit-averse) blogger.

Instead, let's regale over Greenberg's request for an incentive award of $4 million on top of their $20 million in fees for handling the Southeast Bank bankruptcy. Those greedy plaintiffs' lawyers!

(Young ones, Southeast Bank was something big and powerful that existed a long, long time ago, like dinosaurs and David Paul).

And get a load of this hilarous column by Virginia Heffernan in which she finds that online commenters to Anne Applebaum's NYT column are pretty much uninformed, mean-spirited, anti-semitic, sexist pigs.

In other words, dog bites man:

Commenters, in short, rarely really sock it to a columnist. They also too often go automatic, churning out 100-word synopses of one stock ideological position after another. But most disappointing of all, for readers, is that commenters don’t, as literary critics say, read an article against itself to show how, for example, an argument framed as incendiary is in fact banal, or one that’s meant to be feminist is retrogressive, or one that touts its originality is a knockoff.

Instead, paradoxically, commenters frequently reiterate Applebaum’s own arguments in the service of their would-be critiques. Last year, for instance, when Applebaum described her newfound disillusionment with John McCain, whom she supported for president in 2000, many commenters criticized her bygone support for McCain by doing little more than rehashing her new case against him, which she had just presented.

This echo-chamber effect is unpleasant, and it makes it hard to keep listening for the clearer, brighter, rarer voices nearly drowned out in the online din.

I immediately thought of the comments posted on the Miami Herald website. Can you imagine if someone took the time to break those down? Oy, oy, and triple-oy.

I meant to put this up Friday, but it's a slow news day so enjoy this silver lining from our friend, Mr. Deepening Recession.

Other tips always welcome!

Charlie Pickett and the Eggs!

Welcome to Monday, peoples.

Wow -- I had no idea Charlie Pickett now practices securities law in Palm Beach:

Before Pickett, 55, was a lawyer at West Palm Beach's Casey Ciklin Lubitz Martens, he was a South Florida musical god. With his bands The Eggs and then The MC3, this guy from Dania injected a sweaty dose of rock-laced country and blues into the local '80s music scene. He toured the United States, made one record on Minneapolis' Twin Tone label, and then another produced by REM's Peter Buck.

''At the crossroads where Johnny Thunders and Son House intersect, Charlie whipped up a bad voodoo vibe of heroin rock and midnight blues,'' Buck wrote glowingly of Pickett's music.

But it wasn't enough.

''He was one of those great forgotten guys,'' says Bloodshot's Rob Miller, who encountered Pickett as a fan when the band hit Ann Arbor, Mich., in the 1980s.

That is, until last fall, when Bloodshot released the retrospective Bar Band Americanus, which brought Pickett a rave review in Rolling Stone and an invitation to Austin's famed South By Southwest music festival.

''He has never given it up,'' says longtime supporter Leslie Wimmer, who with then-partner Ted Gottfried released Pickett's first discs through their OPEN Records label in Miami. ``Why stop just because you didn't quote-unquote make it?''

You can relive the cooler version of the 80s at Tobacco Road on Saturday, where Charlie plays a gig at 10 p.m.

Hey, if you ask him his views on the PSLRA and the automatic discovery stay, you can bill for it and charge it to the firm.

SFL Love Pyramid Friday

Well kids, the weekend is nearly here and I'm excited about it.

But first I have to get a few things done.

Write nasty letter, check.

Send out some bills, check.

Get out of 4 p.m. conference call on some bullcrap excuse, check.

Read Judge Posner's penetrating discussion of "lubricious sexual devices," check.

(Oy on the last one, btw).

Ok, now that the decks are cleared, I hope you all have some wonderful weekend plans.

Me, I plan to devise a dish that somehow includes chocolate, salmon, oatmeal, and artichokes. I also plan to live in the 70s', but I pretty much do that already.

Tomorrow is Global Youth Service Day, so put your hands on something interesting and maybe even constructive this weekend.

Why do I talk about service so much?

My peoples, it's all about the love pyramid:

The overall premise of the book is simple: under stress, the body undergoes a Fear Response, which has to do with activation of the sympathetic nervous system and secretion of stress hormones. Although the Fear Response is essential to our survival (e.g. to run away from a saber-toothed cat), its tonic activation under conditions of modern stressful living can wear down our immune system and make life miserable.

You get the fear response when you think "I am not enough; I do not have enough." The Love Response - "I am enough; I have enough" - is the antidote, with simple practices that activate equally robust physiological mechanisms of well-being and joy.

The questionnaires in the book provide tools for self-assessment, and the scoring cleverly operates such that unless you get a perfect score, you've got some work to do, buddy. In one of these, she introduces the concept of the tripartite Love Pyramid: "The Love Pyramid is a life structure that can help you override negative childhood conditioning and negative experiences from early life and keep your Fear Response in check." Its three levels are:

* Social Love: the love you exchange with others

* Self-Love: the love and nurturance you give yourself

* Spiritual Love: the connection with Spirit or something larger than yourself and the altruistic works that flow from it.

I like love in all its varieties, don't you?

Have a great weekend everybody!

Computer Hard Drive Suppressed Florida Federal Criminal Defense Attorney

Florida Federal Criminal Defense Attorney in Tampa notes that a computer hard drive has been thrown out or evidence. Federal Court of Appeals rules: Delay of twenty-one days in obtaining warrant for search of hard drive after it had been lawfully seized from defendant's residence was unreasonable under circumstances. Court held: Motion to suppress should have been granted

Source: 21 Fla. L. Weekly Fed. C1763a

Computer Hard Drive Suppressed Florida Federal Criminal Defense Attorney

Tampa Federal Criminal Defense Attorney on Juror Misconduct

Tampa Federal Criminal Defense Attorney W.F. ''Casey'' Ebsary, Jr. , notes that the New York Times has uncovered a rash of mistrials resulting from jurors using technology during voir dire (jury selection) and throughout the trial and deliberations.

During a federal drug trial in Florida a juror admitted that he had been doing research on the case on the Internet The judge had instructed the jury not to rely on evidence not presented in court. The other eight jurors had been doing the same thing. The judge declared a mistrial- pulling the plug on an eight-week trial.

The complete story is available here.

Tampa Federal Criminal Defense Attorney on Juror Misconduct

Just Lucky, I Guess.

This from Alana Roberts in today's DBR:

This is the second, high-profile Loumiet banking client that has been implicated in a fraud.

Note -- Carlos was completely cleared of the first one.

Still, I'm curious -- Bowman Brown, do you have anything to add to this story?

Note to Miami Herald -- Torture Is Not A "Partisan" Issue.

Sorry but this stuff bugs the crap out of me:

Yet liberal activists Thursday delivered 250,000 petitions to Attorney General Eric Holder demanding an independent prosecutor. Liberals in Congress are calling for a commission. And Obama himself all week refused to rule one out, saying that a bipartisan, independent panel would be the best option.

Right now, the political oxygen in the nation's capital is being consumed by rancor over the interrogations. That's why several experts on Congress and previous high-profile investigations think that it's increasingly likely that Obama will call for an independent panel, outside Congress, similar to the 9/11 Commission that examined the 2001 attacks.

That could help tone down the partisan bitterness over the issue, especially if officials who testified were given immunity from future prosecution.

What lazy and hacktacular framing.

Listen, when President Obama and Senate Majority Leader Harry Reid both oppose investigating the United States officially incorporating torture methods as national policy, it's not simply a "left/right" issue. Believe me, we all know plenty of Dems played a role in allowing this fiasco to unfold.

It's a constitutional issue, an issue of the application and vindication of the rule of law, an issue of moral imperatives versus "pragmatic" or political compromise, an issue of our shared vision of what this country is or should be.

It's a right or wrong issue, draycups.

BTW, you can see more of the quite extraordinary artwork of Arthur Szyk here.

Ode to Catherine Van Asselt

You are South Florida's Lexis representative
Smart like a fox
Much prettier than Randy Kroner or Ed Knox
But dear Catherine I must confess
That Westlaw costs less.

Judge Jay Bybee, Legal Scholar.

Hi kids!

This time I mean it literally.

Kids who are at work today with your parents, this is what your parents do when they go to the office. They waste time and slack off in front of the computer -- just like you!

Except when they are done, they type the following:

"2.9 -- Professional development -- review new legal opinions and local bar news and analyze same."

on their timesheet.

See how easy it is to be a lawyer??

I haven't written much on these torture memos, because there is so much good content out there already. In particular I'm talking about Glenn Greenwald's ongoing takedown over at Salon, as well as UM Law Professor and uber-nudge Michael Froomkin, who has written in my view the definitive short take on the matter at his overly busy, cluttered yet entertaining blog here.

Personally, I am endlessly fascinated by the August 1, 2002 memo by then-OLC lawyer and now sitting 9th Circuit Judge Jay Bybee(!).

It's fascinating not because it is a shamefully hackneyed effort to paper over torture methods already in use and which now apparently require official legal sanction. That's obvious.

Bureaucratic hacks in a government that is based in law and has at least a mild legal tradition have always written these types of memos. I'm thinking of British memos relating for example to suppression of the Mau Mau rebellion, Nazi-era memos such as the Wannsee report or "Night and Fog" decree, even legal decrees coming out of the old Soviet Union. Hail, you can throw in the Dred Scott decision while you're at it.

What's fascinating to me is how shockingly bad it is as legal scholarship. No discussion of contrary caselaw or existing historic and legal traditions relating to the proposed torture techniques, no analysis of legislative history, no effort at statutory construction, and conclusory in the extreme to the point of parody.

Professor Heller points out that there is direct precedent relating to Nazi lawyers who approved or failed to object to "legal" activities that were nonetheless crimes against humanity. Anyone who has saw Judgment at Nuremberg knows that lawyers and judges -- acting legally in some technical sense -- must nonetheless be held accountable for the rule of law to be vindicated.

The fact that certain torture methods may have "worked" is meaningless to me. That is not the test and never was. If raping a suspect's daughter in his presence "worked" would that make it right or appropriate? How about slicing off an ear -- of course, only if it "worked."

The slippery slope speaks for itself -- or should, especially for conservatives who make fun of Stanley Fish-style "situational ethics" and think absolute values endure regardless of time, place, or emergent conditions.

There, now I'm going back to dreaming of the princess.

My Day With Milton Hirsch.

I like Milt Hirsch.

Good lawyer, funny guy, he's gonna make a great judge.

But Milt, seriously, please stop following me around. He's everywhere.

Here he is with some other old white guys at the FACDL pro bono public defender event yesterday. I saw him again later at Stearns Weaver for the Bob Graham fundraiser for legal aid -- buy Senator Graham's new book on participatory democracy, btw. And thank you for your support, Senator.

It got a little much, however, when I was getting dressed this morning and Milt picked out my tie and handed me my shirt.

Miltie, please -- enough already. You have my support, you have my money, yes I will do a fundraiser.

What more can I offer?

3d DCA Watch -- Through A Glass, Obversely Edition

Hi kiddies!

Is it kismet, fate, or simple indigestion that I happened to glance at my DCBA Bulletin and, after reflecting on the full-color beauty that is my friend Timothy Ravitch (what, no color for Gisela Munoz?), noticed that the DCBA plans to honor Judge Schwartz with a Judicial Excellence Award.

Hey, I just report this stuff.

But alas it is hump day, and my job here is not done. Yes, I must read the scribblings! Or magnificent examples of legal scholarship, you decide.

Whatever you call it, the Resplendently Robed Ones have issued Important Utterances, and damn you, WE WILL NOT BE IGNORED.

Ok ok, we're interested, really, even all you Fancy Pants federal court practitioners, because sometimes those judges (at least the Catholic ones) also try to figure out Florida law.

And good luck with that whole thing.

So onward we go, through the coffee-swilled landscape of beautiful South Dade, and on to this week's patently, patiently, I mean patented 3d DCA Watch:

Hall, Lamb v. Sherlon:

Oh this is a fine South Florida story. Poor Andy Hall, nice guy and good lawyer. Has a client, tries to settle case, client fires him and hires a suspended attorney. Andy then files charging lien, the parties settle, and the suspended lawyer steals all the settlement proceeds.

Just another day in paradise, folks.

Trial court refuses to adjudicate lien against settling defendant. Court reverses, finding that there may be joint and several liability against the appellee/defendant:

Here, it is undisputed that upon being terminated, the law firm notified the parties of its interest in recouping the fees earned during the course of representing the former client. Such a perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.” Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988) (emphasis added). See also Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney’s charging lien, pays out a settlement to the attorney’s client, and fails to protect the attorney’s interest, the paying party may be held jointly and severally liable for the attorney’s fees along with the attorney’s client to the extent of the settlement proceeds or other funds held). Accordingly, the law firm argues that Sherlon, along with the former client and Blumstein, may be held jointly and severally liable for the fees earned during the law firm’s representation of the former client. We agree.

There is no question that as a party to the settlement, Sherlon had an affirmative duty to notify the law firm of the settlement and to protect the law firm’s lien interest in the settlement proceeds. Zaldivar v. Okeelanta Corp., 877 So. 2d 927, 930 (Fla. 1st DCA 2004). Similarly, the record now before us indicates that although Sherlon and the former client reached a settlement by the end of September 2006, Sherlon failed to notify the law firm of the settlement in any way until November 2006—when the parties obtained a dismissal of the action with prejudice from the trial court. Furthermore, Sherlon took no other steps to protect the law firm’s interest. Sherlon did not ask the trial court to prevent the direct payment of the law firm’s fee to Blumstein and the former client or to set those funds aside. Instead, Sherlon paid the entire settlement to the former client (through Blumstein) without providing safeguards for the law firm’s lien interest. And regardless of Sherlon’s intent, by doing so, Sherlon may have committed a fraud upon the law firm. Heller v. Held, 817 So. 2d 1023, 1025 (Fla. 4th DCA 2002).

But no, says Judge Schwartz in dissent. In fact, Judge Schwartz grants the appellee a phantom summary judgment, absolving them from all potential liability:

While I agree that Sherlon did not appropriately alert the appellant law firm of the settlement, I dissent from reversal because that failure was not a legal cause of the firm’s failure to recover.

The reason for informing the lawyer of a settlement is to permit him to take steps to protect his charging lien. See Zaldivar v. Okeelanta Corp., 877 So. 2d 927 (Fla. 1st DCA 2004). In this case, however, the Hall firm, by other means, actually learned not only of the settlement but of the location of the proceeds: in “escrow” with the plaintiff’s representative, a person who stated he was an attorney, but was not. Indeed, the firm succeeded in imposing a charging lien on the fund – just as it would have had the defendant given appropriate notice. Hall did not get its fee, however, only because the “escrow agent” eloped with the entire settlement. Putting it in legalese, the theft was the sole proximate cause of Hall’s damages. Obversely, the appellee’s missteps were immaterial to and were thus not a legal cause of the loss.

First of all, that's not the issue on appeal but umm, how do you know this, Judge? The majority opinion specifically states that "Sherlon did not notify the law firm of the settlement or that it had transferred the total amount to Blumstein."

Maybe if Andy was aware of the pending transfer, before it went to Blumstein, he could have moved to have it placed in a different escrow account or maybe the registry of the court?

Or is that question too obverse?

Young Whippersnapper Writes Letter!

That fresh-faced kid over at the Podhurst firm wrote a letter to the Herald:

The April 19 story Famous architect Frank Gehry feuding with Miami Beach over New World Symphony project omitted the role of the New World Symphony's leadership in contributing to this problem. Though I disagreed with a majority of the Miami Beach City Commission that voted to remove Gehry from this project, there is no question that the Symphony did not actively resist that decision, signaling that it had ``Gehry fatigue.''

In addition, the Symphony's mishandling of its dealings with Gehry and its mismanagement of the design and cost estimation of the garage project are significant contributing factors. The Symphony is a first-class cultural institution, but its leaders have used secretive and hardball political tactics on this issue.

How does that young man find the time?

You Are Needed Now.

Oh boy, so it's Wednesday.

Remember when musicians used to get up on stage and play? And they were pretty good musicians? And we were all entertained by this?

Yep, those were the days.

So I see my friends Rick Freedman and Carlos Martinez are holding a press conference at 11:30 this morning:

On Wednesday, April 22, 2009 at 11:30 AM, Eleventh Judicial Circuit Public Defender Carlos Martinez will hold a joint Press Conference with Florida Association of Criminal Defense Lawyers (FACDL) - Miami Chapter President Rick Freedman to announce FACDL-Miami's participation in a Pro Bono Initiative. The Press Conference will take place at the Public Defender's Office.

Beginning this week, more than 35 experienced criminal defense attorneys who are members of FACDL-Miami, will begin accepting felony cases from the Public Defender's office, as part of a volunteer (pro bono) attorney initiative to help Miami-Dade's poor. The initial response to the program has been fantastic and veteran lawyers with nearly 900 combined years dedicated to the legal profession in our community including Eugene Zenobi (39 years), Jack Blumenfeld (42 years), James McGuirk (42 years), Joel Robrish (40 years), William Aaron (37 years), Bruce Fleisher (36 years), Paul Morris (34 years), Bruce Alter (33 years), Richard Sharpstein (33 years), Alan Greenstein (32 years), Leonard Sands (31 years), Samuel Rabin (30 years), Jeffrey Weinkle (30 years), Richard Hersch (29 years), Eric Cohen (28 years), Milton Hirsch (27 years), Dennis Kainen (27 years), Michael Catalano (26 years), Lawrence Kerr (26 years), Rick Freedman (25 years), Faith Mesnekoff (25 years), Phil Reizenstein (23 years), Hector Flores (22 years), Tony Moss (22 years), Roberto Pardo (22 years), Marjorie Alexis (20 years), Robin Kaplan, Beatriz Llorente, Marshall Dore Louis, Mark Eiglarsh, Arthur Jones, Joaquin Padilla, Jackie Woodward, Keith Pierro, Larry McMillan, Elizabeth Perez, Michael Mirer, and others have offered their services to this wonderful program.

The Sixth Amendment to the United States Constitution guarantees all accused persons the assistance of counsel for their defenses. If that protection is to have any real meaning, then the Florida Legislature must provide the necessary funds in order for Public Defenders throughout the State to effectively represent their clients.

The Florida Association of Criminal Defense Lawyers - Miami Chapter is aware of the critical situation that exists at the Public Defender's Office in the form of budget cuts and increasing caseloads. The result of this is that the attorneys in that office are handling too many cases and cannot be constitutionally effective in their representation of their current clients.

The legislature's answer to this problem is to create more crimes with new statutes, increase penalties for existing crimes and spend hundreds of millions of dollars to build more prisons. All of this results in more defendants being arrested, more cases being filed and an exponentially higher chance that an innocent man's freedom will be taken from him. In order for every accused American to have competent and effective counsel, the second branch of our government must stop ignoring, at budget time, the third branch.

This is a good thing. It's an example of how you can find meaning for yourself as a lawyer, of how you can contribute to being part of the solution instead of being part of the problem. Either that or you can go work for John Ashcroft.

It's no secret we are big fans of Carlos Martinez at this crappy blog, and for good reason: he's reasonably competent at what he does, and his heart is in the right place.

What more do you want from a public servant, particularly in this town?

As a civil litigator I was a strong proponent of his initiative to bring in bored, inexperienced, to-be-fired BigLaw associates to help out with the public defender's caseload. I know Rumpy and his merry crew of Shumified defense lawyers all derided this idea, but I think it's great.

Part of the criticism stems from a perception that criminal law is an elusive beast that can only be mastered by those in the know and who are conversant in the mystic arts.

It's certainly true that to be highly skilled at this speciality takes much talent and years of dedication.

But how about being mediocre or even slightly below average at it? You know what I am talking about.

Seriously, how hard is that?

Another part of the criticism stems from the perception that BigLaw attorneys are lousy trial lawyers and wouldn't know how to find a courtroom, let alone succeed in one.

Ok, fair point.

But the fact is these lawyers got their jobs because they are smart, capable, and quick learners. They succeeded at law school and are for the most part capable of schlepping their way through a motion to suppress hearing, assuming they get some training first.

Why not give them the training, plebes?

Catholic Federal Judges To Meet and Honor Judge P

Our friends at the DBR note that the revived Catholic Lawyers Guild is set to honor Magistrate Judge Palermo after the annual Red Mass on Thursday:

The reactivated Miami Catholic Lawyers Guild will recognize U.S. Magistrate Judge Peter R. Palermo on Thursday with the Lex Christi Lex Amoris award.

Palermo, 90, was part of the first group of federal magistrates sworn in almost 40 years ago and is still in active service. He has served in Miami since 1971. He was a state prosecutor in the early 1950s and was a senior partner with Palermo & Connelly from 1953 to 1960. He has presided over the two largest citizenship ceremonies nationally, swearing in 10,000 citizens in 1984 and 14,200 citizens in 1986 to add to his total of about 600,000.

Palermo is set to receive the award at a reception hosted by fellow judges following the annual Red Mass.

The guild was revived after being dormant for more than 10 years.

Those alert ankle-biters over at Riptide, however, see something church/statey about the whole thing:

Trueba explains that religion will be limited to the service. Yeah, the group's name, "Catholic Lawyer's Guild," is on the invitation, and there's a possibility Favalora will attend the luncheon, which will also honor a magistrate, but, "There is no violation of the establishment clause of the Fisrt Amendment," he explains. "Right now there is nothing on the agenda that calls for a prayer or a religious ceremony at the courthouse."

Whether or not Trueba is right, I don't like the idea. How might holding an event like this at the courthouse make defendants in religious discrimination cases feel.

It's bad judgment on the part of judges, who don't answer to the public but should know better. I hope they reconsider -- and maybe have the luncheon at a restaurant.

Maybe because I love Judge P so much, I'm not sure I find this all that objectionable. I guess Chuck is right that a different location than the courthouse might be a more appropriate location, yet anyone who knows Judge Palermo knows that his religion is as fused to his being as his judicial identity.

What say you?

What the bank's lawyer does not want you to know.

What the bank's lawyer does not want you to know:

As insurance and foreclosure litigators who are in Court just about every day to keep the roof over our clients heads and prevent our clients homes from being sold out from under them, I wanted to share the view from the front lines from our battles with the banks in courtrooms in Miami, Ft. Lauderdale, Naples, Orlando, and across the great state of Florida. The banks and lawyers they hire would like the homeowners to believe that bank’s case is easy. Many of our clients have asked:

Q: If I borrowed money and I have not made all of the payments … what is there for you to do?

A: We make the bank prove its case. We search for legal violations by the mortgage broker, original lender, appraiser, loan servicer, and law firm representing the bank. We make the party bringing the lawsuit (which is often a trustee for various institutions who purchased securities representing claims on a pool of securitized mortgages) prove that they actually own the mortgage and note, have legal standing to file lawsuit, and have the evidence to prove the loan was properly transferred between each of the entities that owned the mortgage at various times. We assert all affirmative defenses and counterclaims that we know of and conduct discovery to support any claims our client may have against the bank or any other entity involved in the lending process.

In short there is plenty of things for a lawyer to do when defending a homeowner in foreclosure. Some homeowners decide to file a simple answer denying the allegations in the lenders complaint. Filing a simple answer will avoid a default but foreclosure defense litigation is much, much more then filing an answer. Sadly some “foreclosure defense” lawyers do little more filing a simple answer with lawyers bar number on it.

Twenty years ago it was very easy for the banks lawyers. Twenty years ago all the banks lawyer had to do was fill out forms. In days of old a homeowner had to put 20% down to purchase a home. If a home owner put 20% on a $200,000 house they would have to put $40,000.00 of their own money down at the time of the sale. Over the next few years the house might appreciate to $215,000 and the homeowner might pay off $5,000 to $10,000 of the debt. As such three to four years after buying the home the homeowner would have $60,000 to $65,000.00 in equity. Let us consider what would happen if this homeowner lost their job or was hospitalized and missed four mortgage payments. If the bank brought a foreclosure action, the homeowner with substantial equity would do one of the following:

(1) Borrow money from a family member, credit cards, or a loan shark to pay the four missed payments, interest, late fees, attorney’s fees & costs, and obtain a dismissal by bringing the account current.

(2) Sell the house at a significant profit (around $215,000) and use the sales proceeds to payoff the full loan balance.

(3) Refinance the house, and payoff the original mortgage with the loan proceeds.

Whether the homeowner brought the account current, sold the house, or refinanced the bank got paid in full. After the bank and the bank’s lawyer received their principal, interest, late fees, attorney’s fees and costs, the case was dismissed. The bank’s lawyer only needed to fill out the forms and every homeowner with equity would capitulate and pay whatever the bank says was due.

Since the law firms representing the banks mostly just filled out forms at many of these firms paralegals were hired to fill out most of the forms. The lawyers at many of these firms did not have to litigate very often and thus while they were very good at filling out forms many of them rarely got a chance to develop litigation skills in evidence and civil procedure.

Today most homeowners facing foreclosure never hire a lawyer. CNN did a story about what happens to Ft. Myers homeowners who go to court without a lawyer. Here is a link to a video segment about this on CNN.

http://www.cnn.com/2009/US/02/23/rocket.docket.foreclosures/#cnnSTCVideo


In Ft Myers (Lee County) there is a judge who will hear 300 unrepresented foreclosure cases in an afternoon. The hearings last as little as 45 seconds. In these cases, since the homeowner has not filed the proper written legal defenses, the judge would merely ask:

Q: Are you current on the mortgage?
A: NO …and
Q: Are you living in the house
A: Yes

The judge would then grant summary judgment for the bank and ordering a sale in sixty days. For a homeowner going to Court without a lawyer is like bringing a knife to a gunfight. Most unrepresented homeowners get slaughtered.

When the bank’s lawyers have to battle real litigators the battle is very, very different. Many times the bank has lost the original note that is usually a prerequisite to foreclose. In other cases the mortgage has been transferred from a mortgage broker to a large bank who sold the mortgage to Fannie Mae or Freddie Mac, which in turn bundled and sold the loans on Wall Street (often to Bear Sterns) where they loans were securitized. The trustee for the pool of securitized mortgages often lacks documentation that each of the prior holders of the note and mortgage complied with all necessary formalities when transferring the note. If the bank bringing the foreclosure action needs evidence or documents from the prior owners of the note many of these companies have closed, been taken over by the government, or have merged with other banks. It is often very difficult or in some cases impossible for the banks to prove their case.

The bank’s lawyers are often overwhelmed. In Collier, Lee and Dade counties there have been times when over three thousand cases were filed in a single month. When bank lawyers have more work than they can handle they are often inclined to work on the easier cases first. For the banks’ lawyers the easiest cases are against homeowners who just give up. Unrepresented homeowners almost always loose, usually lose quickly, and may lose more then once. For many homeowners the first time they lost was when the failed to shop for the best loan. Many homeowners with good credit who could have qualified for a prime mortgage were put in higher rate interest loans with variable rates that just kept adjusting upwards after the teaser rate was over. The second time these homeowners lose is when they lose their home in foreclosure. If the bank gets a judgment for the full amount of the loan and later sells the home for less the homeowner may end up losing a third time. The bank may seek a deficiency judgment for the difference between the amount of the note and the amount the bank received for the home. Years later the bank may sell this judgment to a bill collector, who will attempt to collect from the former homeowner by garnishing their bank accounts or garnishing their wages. This third and final loss will add insult to injury and cause further damage to the homeowner’s credit.

If the bank is faced with an aggressive defense from an experienced litigator they often face a real risk of losing the case entirely or spending years in an expensive fight where they could win some of the issues and lose others. Banks are corporations that exist to make profits for their shareholders. Banks operate out of self-interest. Banks modify mortgages when making interest rate concessions with increase the likelihood that a borrow continues to pay, or in order to convince the borrower to restart making payments. When a mortgage file gets transferred from the loss mitigation department to the legal department the concessions banks will make when they are at risk of losing are much, much greater. We have had clients that begged for loan modifications and have had clients that sent the bank full mortgage payments that were post due only to see the bank return the payments and pursue foreclosure. After the bank loses a summary judgment the calls from the banks lawyers often sound something like this: “What will it take to make this go away?” These homeowners in exchange for a written agreement to “Re-establish the note” may see the amount of their loan cut by 40% and their rates lowered below 5%.

In the trenches we have found that banks are overwhelmed, unprepared, and often unable to prove their case. In their rush to close loans many banks cut corners and did not comply with all applicable rules. Many homeowners have legitimate claims against the banks that they will never discover on their own. In the trenches we are finding that with proper representation homeowners stay in their homes longer (in some cases indefinitely) and can work out settlements that are rarely if ever offered to unrepresented homeowners.

This information is a public service of Shuster & Saben, LLC. For more information about hiring Shuster & Saben to defend your foreclosure case our website www.attorneyforeclosuredefense.com

Law Updates for April 17, 2009

Mathis, 34 FLW 736, 3rd DCA, C.I. Tip - officer did not have probable cause to search the def on the basis of a reliable c.i. tip that the informant had seen the man make a hand-to-hand transaction by a described man at a specific location where the informant did not describe the type of drugs sold or the method of delivery, and there was no evidence that the location had any prior history of drug transactions or that the officer had any prior knowledge of def's involvement in drug dealing. Hand-to-hand standing alone insufficient, under totality of circumstances, to provide officer with probable cause to search the def -see Chaney, 956/535(4th DCA 2007)

K.H., 34 FLW 739, 3rd DCA, Battery LEO-Ofc did not have pc or founded suspicion that juvenile was committing an offense(L & P) ofc not engaged in lawful performance of legal duties when he stopped the juvenile-error to convict juvenile of Battery L.E.O-remanded to reduce to battery as pushed ofc when he attempted to grab him-Act of placing hands on and looking inside window of vehicle with dark tinted windows not L an P




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

Judge Seidlin Really Really Wants To Help People.

Oh South Florida! Why do you bless us with so many endlessly entertaining state court judges?

Is it the water? The mold? It must be something, but please baby don't ever let it stop.

In our latest installment, the Herald takes a close look at former crybaby Anna Nichole Smith Judge Larry Seidlin:

From 2003 to 2008, Kasler gave the Seidlins more than $400,000. She also gave $54,260 to the exclusive Pine Crest School in Fort Lauderdale for the education of Seidlin's daughter, Dax, according to an investigation last year by the Miami-Dade state attorney's office.

The probe found no criminal wrongdoing. But the ''close-out'' memo pointed out that Kasler gave money to multiple members of the Seidlin family except for Larry Seidlin -- who, as a sitting circuit court judge, would have had to publicly disclose the gifts. Seidlin left the bench in 2007.

The story of Seidlin and Kasler goes back to 2003, when Kasler made the first payment to the family, according to the Miami-Dade investigation. It was a check for $10,000 to Seidlin's young daughter, Dax.

Kasler had an estimated worth of $6 million, the Miami-Dade report stated.

In 2005, Monica Izquierdo Vial, now 57, started cleaning Kasler's home. Later, she added more hours as a caretaker helping with Kasler's chronic obstructive pulmonary disease, which makes it difficult for her to breathe.

Izquierdo, in an interview, described Kasler as ``brainwashed.''

She said she saw Seidlin lie in bed with Kasler, telling Kasler he was her son. She also said that several times she saw Seidlin remove Kasler's oxygen nosepiece while Kasler slept, saying, ``I don't want her to get used to it.''

Izquierdo contended that Seidlin coached Kasler about what to say to Miami-Dade investigators looking into the allegations.

''Ridiculous,'' Shohat said. ``I can assert to you with great confidence that there is no evidence medically that Larry or Belinda Seidlin did anything to cause Barbara Kasler's health to deteriorate.''

Hmm, interesting Ed. "Great confidence" in denying the taking off of the nosepiece. What about the rest of the allegations?

Actually, Ed may not even be denying the nosepiece allegation, just perhaps that taking it off on occasion did not cause Ms. Kasler's health to deteriorate?

The Sun-Sentinel's coverage is here.

Judge Seidlin, your desire to help others truly knows no bounds.

BTW, I'm pretty sure I am the son of Adrienne Arsht. Entirely unrelated -- my kids go to Ransom.

Just thought "Mom" should know.

Glenn Garvin Lives in Tuckahoe And Thinks Dr. Arthur Harmon Makes Some Valid Points.

I finally figured it out -- Glenn Garvin is stuck in Season Six of Maude.

The Herald TV columnist-turned-editorialist inhabits a world that is straight out of that groundbreaking 70s sitcom, filled with "wacky" limousine liberals, hippies lurking under every bed, Feminazis and long-haired draft-dodgers who seek to impose their "batty" PC cultural values on the silent majority of decent, hardworking hard-hat Americans.

In Glenn's world, every administrator and "lefty" academic seeks to impose their "1960s political orthodoxies on a younger generation," George W. Bush is just like President Lincoln, fascism is a left-wing rather than right-wing phenomenon, the 70s-era Fairness Doctrine is making a comeback, the peace symbol is really secret code for the Waffen-SS, and John Lennon was a womanizing, abusive druggie.

In other words, he's stuck in Tuckahoe with Maude and Walter Findlay.

In particular episode #126, "The Gay Bar," in which Arthur organizes a local group of neighbors who are opposed to the opening of a gay bar in Tuckahoe. As I recall, Arthur's group pickets the bar with signs that bear the acronym of Arthur's anti-gay group, Fathers Against Gays Society.

That's right -- F.A.G.S. For Tuckahoe.

Listen Glenn, I had as big a crush as you did on the luscious Adrienne Barbeau.

Or was it Mrs. Naugatuck, I can't remember now.

But dude, seriously, you have got to move on.

Holocaust Remembrance Day

Well, today is Hitler's birthday and tomorrow is Holocaust Remembrance Day.

Hey, facts are facts.

It's certainly true that almost every religious or ethnic group has been the subject of both formal governmental and informal societal persecution at one point or another in world history. Whether we are discussing Catholics in America in the 1850s, Mormons in Illinois in the 1830s, Indians in India, Christians in China, Darfur, Rwanda, the examples are too numerous and we could go on and on.

What is unique in my mind about the Jewish experience from the Diaspora onward is that Jews have more or less always been the subject of persecution, both formal and informal, in most societies across the world and particularly in highly civilized societies.

German society in the 1930s arguably was among the most civilized if not the most civilized in the world, in terms of art, literature, culture, music, industry, science, law and technology. They had the first television network, for example, the most extensive rail and road system in the world, the most advanced rocketry program, again I could go on and on. (Ok, maybe their food wasn't so hot).

Yet their singular mission was the destruction of European Jewry. The Nazis were peculiarly interested in eliminating Jewish children, for it was the children who had the ability -- simply by living -- to defy the ultimate goal of the Third Reich.

Approximately one and a half million Jewish children were killed in the Holocaust. The number of children who survived is estimated in the thousands.

Anyone who grew up Jewish in South Florida grew up with the living remnants of the Holocaust -- proof of the failure of Hitler's mission. You could not walk into a Publix without seeing a survivor with a numbered tattoo. You could not enter a movie theater, go to a restaurant, or walk down Collins Avenue without encountering a survivor.

I regret not taking the time to speak with more of them; instead I just wanted my black and white cookie from Butterflake, and my steak well-done at Curry's. And I wanted services to end on Saturday as quickly as possible.

There are so many amazing stories of survival that have emerged in recent years, ones that expand upon and go beyond the initial stories many of us have heard many times. I am particularly fond of the lyrical and philosophical writings of Primo Levi, the Italian chemist who found himself at the center of the horrors of Auschwitz. His Survival in Auschwitz and The Reawakening are deeply moving and sophisticated works of art. I also recommend Boris Pahor's Pilgrim Among the Shadows, which recounts in poetic terms the Slovene medic's path from concentration camp to concentration camp at the end of the war.

There is no more moving an account that I have ever read than the newly published memoirs of Clara Kramer, Clara's War, which recounts this young Polish girl's 20 month experience hiding in a dug-out bunker with 17 others below a drunk, philandering anti-semitic German national. Unforgettable.

We pray for all who lost a loved one from intolerance, bigotry, fear, and hatred. We remember.

DCBA Clothing Drive Begins!

I'm sure many of you already received this email, alerting us to a DCBA Young Lawyers Section clothing drive:

DCBA Young Lawyers Section Professionalism Committee and the Horizons Committee in conjunction with 'Canes Closet & Hope Public Interest Resource Center at the University of Miami School of Law SEEK YOUR ASSISTANCE WITH A

PROFESSIONAL CLOTHING DRIVE The Professional Clothing Drive is a philanthropic event that coordinates the donation of work-appropriate clothing for men and women to local domestic violence shelters and other needy individuals April 20, 2009 through May 01, 2009 at the listed locations Hogan & Hartson LLP Mellon Financial Center 1111 Brickell Avenue Suite 1900 Miami, FL 33131 (firm lobby) Hughes, Hubbard & Reed LLP Miami Center 201 S. Biscayne Blvd., Suite 2500 Miami, FL 33131 (firm lobby) Museum Tower 150 West Flagler Street Miami, FL 33130 (bldg. lobby) Dade County Bar Assocaition 123 NW First Avenue, Suite 214 Miami, FL 33128 University of Miami School of Law 1311 Miller Drive Coral Gables, FL 33146 Please Help! Bring Your Clothing Donation to These Locations

Get this man a decent set of professional clothes! And get him out of the cafeteria and/or copy room while you're at it.

It's nice to see the South Florida legal community coming together for such a good cause.

Victor Diaz Probably Doesn't Like "Dogs Playing Cards" Much Either.

Hi kids!

Is it me, or is Podhurst partner Victor Diaz looking better and better? The sharp clothes, the funky glasses, the man is just rockin' it lately.

But you won't see him buying any Velvet Elvis oil paintings:

Commissioner Victor Diaz, who has been outspoken in his desire to keep Gehry at all costs, said the city has mismanaged the project -- and mishandled the famed architect.

He said Gehry was right to be offended by the tone of comments by city officials during public meetings, including suggestions he was hard to work with and a ''prima donna.'' And he said commissioners should hardly be surprised that Gehry would prove expensive.

'It's like saying I want to buy a Picasso and when you get the price, saying, `I'll buy from the guy at the Coconut Grove arts festival, he is just as good,' '' Diaz said. ``I'm not sure that certain individuals on the City Commission understood the genius we were dealing with and treated him with sufficient deference.''

Miami Beach, carefully run by a bunch of hacks since 1915. Thank goodness Victor is there to provide a modicum of reason and dignity to that hopeless crew.

BTW, Victor you need to update your firm photo. You look great nowadays, no need to use that pic from 1985, ok?

SFL Friday -- Walk Down That Lonesome Road

Well it's Friday, folks, and I hope you all made it through the week.

Unfortunately, we will be foregoing our usual Friday afternoon post due to the sudden and incomprehensible loss of former AUSA and White and Case attorney Beth Jarrett.

Please note there will be a memorial service Sunday at 4 for Beth at the home of the family, 5400 LaGorce Drive, Miami Beach.
In lieu of flowers, donations can be made in Beth's memory to Voices 

for Children Foundation, Inc., at 305-324-5678, http://voices4.org.

See you all on Monday.

Stuart Slotnick, My Hero.

Remember when Buchanan Ingersoll had an Aventura and Miami office? You know, back when there were solvent banks and real estate clients and that kind of thing.

Hey, what do you know? I guess technically they still do.

Hi Jack Kessler and Richard Morgan!

Listen Jack and Richard, I want you to talk to your New York partner Stuart Slotnick. This guy is one goyishe kup.

I guess Slotnick's client American Apparel used images of Woody Allen on billboards as part of a marketing campaign. Allen does no advertising of any kind in the United States and did not authorize the advertisements.

So Woody sued and Slotnick began to act just like the kind of lawyer his photograph suggests he may actually be:

The new court papers said American Apparel has "adopted a `scorched earth' approach," issuing broad document requests and subpoenas to many people close to him, including his sister.

Allen's lawyers said the company was seeking to "tarnish Mr. Allen's reputation a second time" and called it a "despicable effort to intimate" him.

Now I guess Slotnick's argument is the value of Woody's image has been diminished as a result of his sex scandal a decade or so ago.

I think there is some legitimacy to that argument.

But what to make of this:

"American Apparel lawyer Stuart Slotnick said the company plans to make Allen's relationships to actress Mia Farrow and her adopted daughter Soon-Yi Previn, whom Allen married, the focus of a trial scheduled to begin in federal court in Manhattan on May 18.

'Woody Allen expects $10 million for use of his image on billboards that were up and down in less than one week,' Slotnick said. 'I think Woody Allen overestimates the value of his image.'"

Stuart, the focus of the trial? Its focus?

I can't imagine any fair use or public domain-type arguments that would have permitted Slotnick's client to use that image from Annie Hall as part of an advertising campaign. So liability seems pretty clear to me.

But wouldn't a more accurate measure of Woody's endorsement value be the amount he charges for similar ads in Europe or Japan?

Oh well.

The heart wants what the heart wants, right Stu?