Foreclosure Follies -- State Court Update

Anybody who's been in state court lately knows the burdens of the foreclosure docket on the judges, clerks, staff, and of course the civil lawyers. It's a mess out there.

It's unclear whether the forced mediation route will lessen the overload, though it does hold some promise:

A task force convened by the Florida Supreme Court to examine the foreclosure crisis has endorsed that model, likening it to "off-ramps to get traffic off the road."

"In order to cope with the size of the problem, the huge numbers of incoming foreclosure cases, the Task Force concluded that only managed mediation could handle the problem in a consistent manner statewide," said its report, released Aug. 17.

But not all judges are on board.

Thomas McGrady, chief judge for the Sixth Circuit covering Pasco and Pinellas counties, said forcing mediations could be counterproductive and add expense, especially in cases where people have no real hope of keeping their homes.

"We're talking 10 percent maybe that are good candidates for mediation," said McGrady, who heard civil cases in Pinellas before becoming chief judge.

He favors identifying those top candidates and ordering them to the traditional mediation program available for any civil case.

But Gardner worries that unsophisticated borrowers would be at a disadvantage in that setting.

"Chances are, they're not really prepared," she said.

The Task Force report noted that in managed mediation, lenders may pay more up front but come out ahead if people are able to stay in their homes.

"Frankly, these lending institutions don't want the property. They really don't want the property," said Circuit Judge Lowell Bray, who works in New Port Richey. "Who knows what they're going to sell it for and when they're going to sell it?"

But Bray said he refers only a small fraction to mediation simply because most borrowers don't respond at all to the foreclosure suit.

"There is no issue to mediate," he said.

Right, often times the borrower does not show up, but that can be remedied through education, outreach, and pro bono efforts by legal aid organizations.

Meanwhile, here's an interesting judge from Brooklyn who handles foreclosure cases his way:

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions.

Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.

“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom.

He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.

Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore.

“Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks, savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:

“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ ”

The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”

Julius Caesar, Mr. Potter, Kansas City Shuffle -- sign this judge up for the blog!

Robbery Suspect Denounces Robbery Investigation As "Unwise."

Oy did I wake up pissed off this morning.

But then I read John Pacenti's tremendous column today and learned that former prosecutor Sean Cronin, who got into such hot water for his shockingly poor judgment during the Ali Shaygan trial before Judge Gold (now on appeal), is actually working on Gitmo cases!?!?!

Thanks John, now I feel a whole lot better.

Here's Senor Calli on this pickle of a predicament:

“I was surprised to learn that there would be an appeal of that order with a professed view from the Department of Justice in Washington to hold prosecutors accountable,” he said. “Judge Gold is one of the finest district court judges in the country. He went to great pains at the sanctions hearing to protect the due process rights of these prosecutors and law enforcement agents and gave them every opportunity to explain themselves.”

Calli said Gold, along with many federal jurists around the country, is concerned that prosecutors are not being held accountable by their department.

“I think whether it’s in Alaska or Florida or in Boston, you are seeing district judges police their own courtroom,” he said.

Ahh yes, accountability --a wonderful concept that should in all cases be applied strictly to others.

Angry commuter Joe DeMaria chimes in:

“Government seems to be blind to the message Judge Gold was sending,” DeMaria said. “I’m concerned when a senior government prosecutor seeking the position of U.S. attorney is being defensive about it. Whether it’s sanctionable or not, the conduct was not defensible.”

Defensive? Lack of accountability?

You want to talk defensive and unaccountable conduct, consider the Dark One's appearance on Fox News Sunday:

“We ask these people to do some very difficult things,” Mr. Cheney said. “They do so at the direction of the president.”

Interesting choice of words, "difficult."

In what sense is it "difficult" for the perpetrator to have to torture someone "at the direction of the President"?

Hmm, this reminds me of a discussion we had recently on Rump's blog.

You mean it's "difficult" for the torturer in that sometimes this person is called on by the state to be ruthless, to be cold-blooded, to be merciless in committing what some might from the outside view as cruel, inhumane or even immoral acts -- to compartmentalize and justify these actions because they are being done for the greater good, for the nation, for total Victory, and for Our Fearless Leader?

Nope, good thing modern Western Civilization has never encountered that impulse before.

BREAKING -- Pepe Le Pew Named New US Senator!

So I see everybody is buzzing about that French love-sick skunk being named the new US Senator from Florida.....

Huh? You mean it's not...?

Oops -- apparently the new US Senator is in fact Gunster chairman and former Crist chief of staff George LeMieux.

You can read more about George in his self-styled The Lemieux Report.

Roberto the trial lawyer and I apologize for any confusion.

SFL Friday -- School's Out, Plebs! (Until Monday)

So how many of you survived the first week?

Let me rephrase -- how many of you survived the first week sober?

Ok, so none of us did.

Still, it's Friday afternoon and that means no one is paying any attention to what they are working on anymore.

Just file the motion or response you have been editing and cut out already! The partner's gone, the judge is gone, the clerks are there but they stopped working, opposing counsel won't read anything until Monday, possibly Tuesday -- get the hail out of here.

Me, I plan to depart imminently to windsurf the stormy seas.

Don't understand my watery attraction? Let me paint a verbal picture.....

Oh hail I better just quote Byron:

HERE be none of Beauty's daughters

With a magic like Thee;

And like music on the waters

Is thy sweet voice to me:

When, as if its sound were causing

The charméd ocean's pausing,

The waves lie still and gleaming,

And the lull'd winds seem dreaming:

And the midnight moon is weaving

Her bright chain o'er the deep,

Whose breast is gently heaving

As an infant's asleep:

So the spirit bows before thee

To listen and adore thee;

With a full but soft emotion,

Like the swell of Summer's ocean.

See what I mean -- why am I still at my computer?

So the gear's packed, the gin is iced, and I am on my way. As usual, I plan to spend the weekend deeply gazing at something, working diligently on my rituals, and trying to figure out where I put that old bean bag chair.

Also, don't forget to vote for Hands On or your favorite charity in this nice cookie-sponsored giveaway contest here.

Have a great weekend everybody!

Probably Not Good to Be "Outside Attorney A."

Former CFO for R. Allen Stanford, Jim Davis, pleaded guilty to fraud yesterday.

This is probably not good news for Proskauer's Tom Sjoblom, who the WSJ Law Blog has written is most likely "Outside Attorney A" in the Davis plea agreement.

Here's just some of the fun stuff detailed by the Law Blog from the agreement:

For starters, Sjoblom comes across in the agreement as a fervent defender of Stanford International Bank as early as 2006. Davis agreed that the government could prove that in 2006 “Outside Attorney A” (Sjoblom) contacted the SEC, which had started an investigation of the bank, to tell the agency that it had “no basis” to request documents concerning the bank’s investment portfolio, and that he “had spent 15 years investigating fraud for the SEC and was ‘well-equipped’ to recognize the ‘hallmarks of fraud.’”

But the allegations relate to events from a couple years later. In 2008, the plea agreement says, Sjoblom was informed that the bank’s CD investment portfolio included a tier of illiquid investments valued at $6 billion and that it wasn’t disclosed to investors. (The tier later turned out to be mostly fictitious.) Also, Sjoblom learned that the bank’s chief investment officer Laura Pendergest-Holt, didn’t manage that part of the portfolio.

But Sjoblom, in a meeting in January of this year with SEC lawyers who were investigating the CD investment portfolio, according to the plea, “falsely maintained” that the company’s chief executive and chief financial officer didn’t “micro-manage” the CD investment portfolio and falsely maintained that Holt would be in the best position to talk about it. Sjoblom then “falsely informed the SEC attorneys at this meeting that [the bank] was ‘not a criminal enterprise.’”

Later, in February, Sjoblom allegedly learned at a Miami meeting with Stanford execs that the bank was, according to the plea agreement, likely insolvent because the CD investment portfolio was essentially fictitious. The chief executive, Allen Stanford, later told him that the bank’s “assets and financial health had been misrepresented to investors.”

A few days later, on Feb. 10, Sjoblom sat by Holt’s side as she told SEC lawyers under oath that “she was unaware of the assets and allocations of assets” in the $6 billion tier, despite the fact that both Holt and Sjoblom had allegedly been given details about the tier in the Miami meeting with Stanford execs. On Feb. 14, Sjoblom resigned from representing the bank and sent a note to the SEC, saying, “I disaffirm all prior oral and written representations made by me and my associates to the SEC staff.”

It's weird -- I have scoured the agreement and news reports, and have not found a single interesting anecdote by anyone reached for comment in connection with this story.

I did, however, just come across this Miami lawyer arguing that if you want to be a player in international banking you have to have a presence in Miami, thanks to our "world-class money management."

And don't forget our great regulators!

I mean seriously, what could possibly go wrong?

Shuster & Saben, LLC announces Short Re-Fi representation with NO ADVANCE FEES

Shuster & Saben, LLC announces Short Re-Fi homeowner representation with no upfront fees.
For Immediate Release: The law firm of Shuster & Saben, LLC announces its availability to represent homeowners with negative equity in Short Re-Fi transactions with no upfront fees. Homeowners pay nothing to get started and incur no fees or costs unless their loan balance is reduced by at least $20,000.00. Frequently Asked Questions about this program follow:

Q: What is a short re-fi?
A: A short re-fi or short payoff refinance is when current lender accepts less than the amount of the loan balance in full and final settlement of the mortgage debt and a new mortgage is issued in the name of the entity providing the source of the funds used to payoff the original mortgage.

Q: What is an example of a short re-fi?
A: The homeowner, Bob Upsidedown bought his home in 2006 for $200,000 and put nothing down at the time of purchase. Mr. Upsidedown had a $200,000 loan with Countrywide that was acquired by Bank of America (BOA). The current value of Bob’s home is $100,000. Due to the recession Bob’s income went from $4,000 a month to $3,000 per month and he was unable to continue to pay his mortgage for the past four months. After reviewing Bob’s employment history and finances Short-Re-Fi investor determines that Bob is a good credit risk. Short Re-Fi investor then contacts Bank of America and offers $75,000 to purchase the mortgage and note on Bob’s property. Bank of America, then evaluates whether it is in their financial interest to accept the offer. If Bank of America’s alternative is a lengthy, protracted foreclosure case against a homeowner represented by an attorney, it might prefer to sell the note rather then spending 12 to 30 months fighting a foreclosure case. Bank of America will also realize that if they were able to win their case and obtain the home, they would have to pay property taxes, mow the lawn, keep the lights on, maintain the property and pay real estate commissions in order to sell the property for an unknown price after unknown delays. In this context the lender may prefer to close their file quickly, receive immediate cash from the investor and take a toxic asset or non-performing loan off their books.

After purchasing the mortgage from BOA, the investor would then record a satisfaction of mortgage, on the original mortgage in exchange for the execution of a new mortgage for an amount agreed to with the homeowner before the note was purchased. Bob Upsidedown’s new mortgage would likely have a loan balance of $90,000 to $95,000 and an interest rate around 7.5%. The investor benefits because they spent $75,000 but are earning interest on $90k to $95k and will receive the full loan balance when the loan is repaid or later refinanced at a lower interest rate. The homeowner benefits because they now have equity in their house and are paying interest on a much small loan balance. Many homeowners see a 30% to 50% reduction in their monthly mortgage expense.

Q: Does Shuster & Saben, LLC provide funding for Short Re-Fi.
A: NO. Shuster & Saben, LLC is a law firm that represents the homeowner in the Short Re-Fi transaction. Our role is to collect information from the homeowner, submit pre-qualification forms to one or more short re-fi companies, and to negotiate with the short re-fi company to obtain the lowest possible loan balance and interest rate for the homeowner.

Q: My credit rating has been damaged by late payments on my mortgage can I still qualify.
A: The Short Re-Fi companies we work with are most concerned about stability of employment and income then credit rating. The short re-fi companies must be confident that the homeowner will be able to make their mortgage payment if the loan balance is reduced to an amount that is less than or equal to the current value of the home. Excellent credit is not required. Candidates with excellent employment history ( 3 years in their current job ) and below average credit will often qualify.

Q: Will the Short Re-Fi company change me an upfront fee?
A: NO. We believe that homeowners contemplating a Short Re-Fi should only incur costs if they actually receive a short re-fi that substantially lowers their loan balance. The Short Re-Fi companies we work with either do not charge upfront fees or have agreed to waive such fees for our clients.

Q: Will ownership of my home change?
A: No. The homeowner never loses ownership of their home. There will be a real estate closing similar to that in a conventional refinance transaction but the homeowner will not transfer ownership of their home.

Q: How does Shuster & Saben get paid?
A: Our firm gets paid only if the Short Re-Fi transaction is completed. Our fee is the greater of $3,000.00 and 10% of the homeowners savings. For instance if the homeowner had a $150,000 loan balance before the Short Re-Fi and a $100,000 balance after Short Re-Fi, our fee would be $5,000.00.

Q: What if I do not have sufficient cash to pay a fee of 10% of the savings?
A: If many cases a substantial portion of the legal fees can be rolled into the new mortgage. Our firm also accepts credit cards.

Q: How complex is the pre-qualification process?
A: The pre-qualification from used by one of the companies we work with is only 1 page long. After receiving the form the re-fi company will have a 15 to 30 minute phone conference with the homeowner to obtain additional information.

Q: How long does the qualification process take?
A: We expect that the re-fi company will make a determination of whether the homeowner is a good risk within two (2) to three (3) weeks.

Q: If I qualify does this mean I will get a short re-fi.
A: Perhaps. In order for a short re-fi to take place three things must happen. First the short re-fi company must approve the homeowner. Second the lender must be willing to sell the mortgage and note for less than the current value of the home, and Third, the Short Re-Fi company and the homeowner must agree to reasonable terms for the new mortgage.

A Full Service Firm, Providing A Wide Range of Legal Services to All Our Ice Delivery Truck Clients!

How'd you like to have a practice that does nothing other than service condo associations in the middle of this real estate meltdown?

Meet Robert Kaye:

Kaye is a partner with Kaye & Bender law firm in Fort Lauderdale. The full-service commercial law firm represents more than 600 condominium and homeowner associations in Broward, Miami-Dade and Palm Beach counties.

I'm kidding, of course. Bob's firm is a true full-service firm that does all kinds of other things too.

Still, for those condo board clients, it just might take a while for those collectables to roll in:

When will the situation improve?

It is very difficult to predict the end of the current situation that we are in. At the end of the 1970s, there was a real estate recession in South Florida and it took nearly 14 years to recover. The current economic conditions are far worse now than they were then, but there are also circumstantial differences, such as the stimulus funds from the federal government. That should contribute to a faster recovery.

Ok, so maybe 10 years, that's still a long time.

Just to be safe, let me call the bank and check on my line of credit.

Hello? Hello? Out of service?

New Stuart, Florida Consultation Location

For Immediate Release:
Shuster & Saben, LLC announces a new available for consultation location in Stuart, Florida. Treasure Coast homeowners facings foreclosure can meet with an attorney of the law firm of Shuster & Saben, LLC at 850 North Federal Highway, Stuart, FL 34994. We are available for consultation at this location by appointment only.



Shuster & Saben, LLC is law firm of five attorneys with offices in Miami and in Plantation / Fort Lauderdale. This Fall Shuster & Saben will open a third office in Satellite Beach, Florida (Brevard County). Shuster & Saben, LLC defends homeowners in foreclosure. Lawyers in our firm have been featured in or quoted by Time Magazine, Univision, and the Daily Business Review. Shuster & Saben offers free consultation with an attorney and defends homeowners in foreclosure for $495.00 per month on loans under $500,000. Treasure Coast residents can reach us toll free at 877-511-STAY.

For More Information about Shuster & Saben, LLC, please see our website www.attorneyforeclosuredefense.com

Random Thoughts In My Head.

I'm having some trouble organizing my thoughts this morning, so let me just lay out what's jogging around in my brain right now.....you guys tell me if any of this is somehow related:

You know there's something wrong with Iqbal when Judge Posner questions its application in run of the mill federal cases:

In our initial thinking about the case, however, we were reluctant to endorse the district court's citation of the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), fast becoming the citation du jour in Rule 12(b)(6) cases, as authority for the dismissal of this suit. The Court held that in complex litigation (the case itself was an antitrust suit) the defendant is not to be put to the cost of pretrial discovery - a cost that in complex litigation can be so steep as to coerce a settlement on terms favorable to the plaintiff even when his claim is very weak - unless the complaint says enough about the case to permit an inference that it may well have real merit. The present case, however, is not complex.

But Bell Atlantic was extended, a week after we heard oral argument in the present case, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) - over the dissent of Justice Souter, the author of the majority opinion in Bell Atlantic - to all cases, even a case (Iqbal itself) in which the court of appeals had ‘promise[d] petitioners minimally intrusive discovery.' Yet Iqbal is special in its own way, because the defendants had pleaded a defense of official immunity and the Court said the promise of minimally intrusive discovery ‘provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from vigorous performance of their duties.

So maybe neither Bell Atlantic nor Iqbal governs here. It doesn't matter. It is apparent from the complaint and the plaintiff's arguments, without reference to anything else, that his case has no merit.

I've often wondered what would happen if some of my favorite cases were anthropomorphized into wrestlers and had to fight each other.

I'm pretty sure Venetian Salami would beat the snot of out Hickman v. Taylor.

However, while being interviewed ringside by Gordon Solie, Venetian Salami was viciously attacked from behind with a folding chair by Professor Toru Tanaka's tag-team partner Chudasama, which inevitably sets up the feud match involving all three of them and that great patriotic superstar, American Pipe.

I can't believe a guy seriously made an entire career out of impersonating Jerry Lewis. RIP Sammy Petrillo.

Problem -- my deep reservoirs of knowledge concerning World War II, films, and the Marvel Universe are beginning to merge -- did Captain America really punch out Hitler or did that just happen in a Tarantino movie?

Triple-oy alert -- Robert Zemeckis is remaking Yellow Submarine.

God do I love Drew Barrymore. Related -- I really hate Justin Long.

Ok folks, it's finally happened -- I have become Larry King.

3d DCA Watch -- Ron Paul Teebagy Edition

You know what they say, justice delayed is justice.....won't get fooled again?

(Damn!! I always screw that up.)

BTW, I have it on very good authority that Tallahassee -- as usual -- messed things up and caused a technical problem which resulted in the delay of our weekly breath of fresh judicial air.

So let's get right to deeply inhaling this week's gusts of juridical joy:

North Pointe v. Tomas:

What can you say about an opinion when the most interesting part is that the appellant is represented by a lawyer with the last name Teebagy?

(Steve's a nice guy btw).

Here Mr. Teebagy was on the losing end of an appeal dealing with how to calculate prejudgment interest when the insurer initially denied the claim but then later provided coverage.

Since Lugassy appears to be directly on point, the trial court decision to calculate interest from the date of loss was affirmed.

Republican Party of Miami-Dade County v. Davis:

Remember Ron Paul?

Before all anyone ever talked about was health care, Ron Paul used to say nice things about the Constitution, hold Teabag-y type parties, and I believe wanted everyone to get stoned (legally) some place other than while fighting a stupid war in Iraq.

Well some of those Paulians weren't so hot on how their candidate was treated by the Florida GOP and some might have even supported Paul if he ran as an independent or Libertarian in the general election.

Even worse, many of them tried to gain leverage over the party apparatus by running for positions within the party or to unseat those who they felt mistreated Paul or his supporters.

So in February 2008 the Florida GOP tightened the noose on their "loyalty oath" to basically require advanced blind allegiance to Ms. Alaska or whomever the Party Elders select:

The new loyalty oath required by the Party stated:

I, ____________, hereby swear and affirm that during my term of office I will not actively, publicly, or financially support the election of any candidate other than the Republican candidate in a partisan unitary, general or special election, or a Registered Republican in non-partisan elections, other than Judicial races governed under Florida Statute 105, if there is a registered Republican running for the same office, unless the county executive committee has taken an affirmative vote to endorse one Republican over another per Rule 8(B). I further swear and affirm that I will not engage in activities or conduct that may be deemed by the Grievance Committee and affirmed by the RPOF Chairman as likely to injure the name of the Republican Party or interfere with the activities of the Republican Party.

And sure enough, what do you know -- some of the electors did not submit their new oaths in time, and the Party refused to seat them. (I'm not saying they were Paul supporters, just explaining the background to the new-and-improved loyalty oath.)

There also was an issue regarding how accessible the new oaths were to potential electors and whether the new requirements were adequately disseminated.

Not happy with winning an election and signing the required oaths (albeit untimely), the electors moved for an emergency injunction requiring they be seated, which Judge Genden granted.

In a split-the-baby decision, Judge Salter held as follows:

We affirm the trial court and injunction on somewhat different grounds than those set forth in the order under review. See § 59.041, Fla. Stat. (2008). Our analysis pretermits any need to reconsider the adequacy of the injunction bond. We also affirm, without discussion, the trial court’s evaluation of the elements required for the entry of a temporary injunction.

As a matter of statutory construction, we find that the Party has the right to establish its own separate form of loyalty oath, and a filing deadline for that form, so long as it makes the new rule and new form reasonably (and timely) known and available to the prospective candidates. That right does not excuse the candidates’ obligations to comply with sections 103.091(4) and 99.021, and of course the Party cannot require the supervisor of elections to monitor compliance with any of the Party’s own rules. Here, the trial court found (and this evidence was not disputed below) that the Party’s notices regarding the new form and deadline were too little and too late. We agree.

We also find that the Party was estopped, by virtue of its knowledge of the alleged ineligibility of the appellees before the election, to await the outcome of the election and the commencement of a lawsuit by the appellees before submitting the alleged ineligibility to a court for resolution.

In a specially concurring opinion, Judge Cope takes this analysis to the teabag-filled woodshed:

No one in this case challenges the text of the oath, or challenges the right of the Party to require members of the executive committee to sign the oath.

But the Party went too far. The exact problem is that the Party required candidates to file this Party Loyalty Oath with the county chair by the Filing Deadline. According to the memo, a candidate failing to comply with this requirement would not be seated on the executive committee—even if that candidate won the election.

Seems fair, right?

Judge Cope continues:

In substance the Party required all candidates for executive committee positions to execute this additional Party Loyalty Oath as a condition of running for office. As a matter of form, the Party required the extra oath to be filed with the local committee chairperson, not with the supervisor of elections. But as a matter of substance, the Party reserved to itself the right to nullify the election of successful candidates if the candidates had not filed this extra oath by the Filing Deadline. This the Party cannot do.

Judge Cope concludes, sounding downright like that geeky old Ayn Rand-spouting doc from Texas:

What is at stake is the fundamental right of individuals to offer themselves as candidates for elective positions—including political party positions—and the equally fundamental right of party members to vote for the candidates of their choice. As explained earlier in this opinion, well-settled Florida precedent forbids the Party from imposing additional, nonstatutory requirements as a condition of running for elected office.

En banc and trip to the Supremes, anyone?

3d DCA Pub Crawl!!

I know everyone's anxiously waiting for 3d DCA Watch, but the pesky tubes are not cooperating and they still only have posted the opinions from last week.

In the meantime, I see that beginning August 25th the 3d DCA has organized an FIU Oral Argument Pub Crawl, starting out at the concrete bunker and culminating with a kegger at FIU Law School.

You can see the various stops on the crawl above.

Law Updates for August 21, 2009

Hatcher, 34 FLW 1643, 1st DCA, Constructive possession. Officers who observed the def and another man sitting at a table located in the front of a residence between a fence and the street in an area known as a high narcotics area lacked pc to arrest the def for possession of the baggie of cocaine sitting on top of the table within 12 to 18 inches of the def where there was no evidence that the baggie was the def's, that the def exercised dominion and control of the baggie, or that the def knew of the baggie's illicit contents prior to the arrest. Error to deny motion to suppress.

Walden, 34 FLW 1162, 1st DCA, Hearsay, 911 call. Error to admit part of call as hearsay where the robbery victim asserted that another person just saw the def get into a red Cadillac. Error was harmless where both the victim and the witness, whose statements were relayed, were cross-examined at trial and witness testified he never actually saw the robber enter the car and could not see the occupants of the vehicle because it was dark and the vehicle was 200 to 300 feet away.

Pearson, 34 FLW 1664, 1st DCA, Writ of prohibition. Speedy trial, in Georgia, error to deny motion for discharge where def was arrested on Florida warrant and booked into a county jail in foreign state pending extradition back to Fla. Def was subsequently charged with and convicted of a crime in foreign state and jailed there as a result. Def was brought back and charged with information 579 days after the initial arrest in the foreign state. Speedy trial period not tolled where no information or indictment was filed in Fla. Failure to hold trial in Fla not attributable to the def , where state was always aware of def's incarceration and could have filed information prior to the def's return to Fla, thereby removing the case from the speedy trial rule.



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

J.B. Harris: A Day Late, A COBRA Short.

Did any of you know that J.B. Harris once worked at United Auto?

I didn't, but according to this 11th Circuit opinion his tenure as in-house counsel was apparently pretty brief.

Once he stopped working there, he continued to maintain his own health insurance coverage through COBRA -- which if I'm not mistaken is an early, more euphemistic government variant to the Obama Death Panels.

But then his wife and a possible "part-time" mailman entered the picture:

Harris asserts that his wife placed the payment in the mailbox on February 11, 2008, but the envelope containing the payment was not post-marked until February 12. According to the complaint, Harris’s wife

either inadvertently [placed the check in the mailbox] after the mail carrier had made his rounds. Or the envelope was picked up that day and post-marked a day later – February 12, 2008 – a real possibility in some areas of South Carolina – like where Mrs. HARRIS lives – because the postal service often employs part-time mail carriers, who use their own vehicles to deliver the mail, and the mail could have gotten delayed, misplaced or even left in the carrier’s car overnight, before making its way to the post office the next day to be postmarked.

Because the envelope was not received within the time period for payment and was postmarked one day after the end of the grace period, Ceridian terminated Harris’s COBRA coverage. Harris attempted to resolve this with UAIG and Ceridian, but they refused to reinstate his coverage.

Ain't health care fun in America?

BTW, I'm pretty sure I recognize that mailman -- not only did he deliver the mail to Mrs. Harris, but I'm pretty sure he also delivered the mail to Chevy Chase in Funny Farm.

See, I knew it would some day pay off to rewatch those subpar 80s comedies over and over and over again.

Hey, I (Almost) Agree With Glenn Garvin!

Boy it's slow out there, huh?

I was going to point out that anybody with a law license is now apparently under consideration to be the next United States Senator, but I see my friends over at Riptide beat me to it.

So let's talk Glenn Garvin.

It's certainly a legitimate political and rhetorical tool to point out when the other side is being hypocritical.

But how far does the observation get you?

It happens so often and with such stunning frequency that -- standing alone -- a charge of hypocrisy in politics is like getting excited over spotting an iguana in your South Florida neighborhood. It just doesn't resonate that much anymore.

So in today's column Glenn observes that economic boycotts used to be bad when they were directed to the Dixie Chicks, but now liberals like them when they are directed to Glenn Beck.

I think he has a point, but an infinitesimally small one.

In addition to the legitimacy of economic boycotts as a tool of political expression, isn't there also a component of whether or not -- in a particular case -- the economic boycott is appropriate?

To equate the Dixie Chicks, who criticized the President once while on foreign soil (a bugaboo that Glenn Greenwald has recently been discussing at length), with the repeated stream of corrosive crazy talk from Beck, is a bit unfair.

Doesn't it matter at all what you are boycotting?

Glenn also conflates corporate punishment with economic boycotts. Bill Maher wasn't fired because he was the subject of a popular protest movement - his bosses fired him because he made comments deemed too controversial. Entirely different thing.

That said, Glenn does devote his entire column to making an exceedingly minor rhetorical point, and I actually agree with him.

So I'm sure back when the Dixie Chicks were being vilified the way Garvin's buddy Beck is today, Glenn was writing similar columns condemning the outrage and pointing out the hypocrisy just like he's doing today, right?

Umm, the Herald must not have archived that column.

But look at this -- Garvin did accuse the Chicks of "embracing their First Amendment martydom"!

See how hypocrisy works, Glenn?

Free Speech Rights?

More on Tom Julin -- now he's busy representing BigPharma and lobbyists.

I don't have a comment on this, other than that is possibly the worst photo I have ever seen of Tom Julin.

Is that Tom or the Kingpin from Spiderman?

There, now I have exercised my free speech rights.

Tampa Federal Defense Attorney - Sample Target Letter

Tampa Federal Criminal Defense Attorney has just returned from additional training on defending wire and bank fraud charges. As previously noted, these types of investigations are numerous and ongoing in the Middle District of Florida.

Below is the text of a typical target letter sent by Federal Prosecutors prior to seeking indictment of a "target." A target has been defined as: "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." United States Attorney's Manual § 9-11.151. Proceed cautiously if you have received one of these letters.

Sample Target Letter:

Re: Grand Jury Investigation, USAO No. 20XXXXXX

Dear Target:

This letter is to advise you that you are now a target of a Federal Grand Jury investigation in this District involving your activities with others related to [Charges and Activities] fraudulent mortgage transactions, in violation of the conspiracy, wire and bank fraud statutes [Statutes Here](Title 18, United States Code, Sections 371, 1343 and 1344), as well as other possible violations of federal criminal laws. The United States is prepared to proceed before a Federal Grand Jury to seek charges against you.

Should you desire to discuss the matter with us before we proceed to bring formal charges against you, please have your attorney contact Assistant United States Attorney [Name Here] (813) 555-5555, so that we may schedule an appointment. If you do not have an attorney and would still like to discuss the matter, please contact Special Agent [Name] at (813) 555-5555 to arrange an appointment. If we do not hear from you or your attorney on or before [Deadline Date], we shall assume that you do not wish to discuss the matter and will proceed accordingly.

Sincerely,

Assistant United States Attorney

If You have received a letter like this, we can help. Get advice from an expert - Call Toll Free 1-877-793-9290.

Tampa Federal Criminal Defense Lawyer

SFL Friday -- Pump It Up Edition.

Divorces are messy things.

The kids, the finances, the house, sometimes even the dog.

But who the hail cares about that stuff -- to me the most important issue is who gets custody of the x-rated pictures:

When a marriage goes bad, who gets the X-rated photos of the wife? In the case of Valeria Gentile and Erwin Cajamarca, the wife says she does.

She sued her soon-to-be-ex-husband last week in state circuit court in Sanford, accusing him of putting the photos on a Spanish-language porn site, distributing them via the Internet and, at times, using them during on-line sex chats.

The whole thing is humiliating, cruel and an invasion of her privacy, her suit alleges. Thousands of people have now seen her in a variety of sexual poses. She's demanding an unspecified amount of money.

Cajamarca, 39, an investment consultant, would not discuss the dispute, except to say that his estranged wife knew he was publishing some of the photos.

He took them with her consent before their marriage went sour, according to the suit.

So whose property are they?

They belong to both husband and wife, said Mitchel B. Krause, a Longwood divorce attorney.

This dispute, he said, it not uncommon among divorcing couples. Sometimes, ownership of these kinds of photos is one of the most contentious issues facing a divorcing couple, he said.

Usually, the spouse who'll be most embarrassed by them agrees to surrender other property to get them, he said.

"The husband will get the picture of the dog, the cat and the house and wedding photos, and the wife will get the other photos," he said.

Hmm, Longwood.

You know, I know a very good attorney in Leesburg who might be just the guy to handle this case -- you should look him up.

Well, I don't know about you but I'm sick and tired of being sick and tired, so I am out of here for some early windsurfing.

Conditions appear to be very favorable.

On my plate for this weekend is going back to school, moving energy from my second chakra, and, as always, trying to keep kosher.

Have a great weekend everybody!

New Melbourne, Florida Consultation Location

For Immediate Release:
Shuster & Saben, LLC announces a new available for consultation location in Melbourne, Florida. Space Coast homeowners facings foreclosure can meet with an attorney of the law firm of Shuster & Saben, LLC at 100 Rialto Place, Suite 700, Melbourne, FL 32901. We are available for consultation at this location by appointment only.




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Shuster & Saben, LLC is law firm of five attorneys with offices in Miami and in Plantation / Fort Lauderdale. This Fall Shuster & Saben will open a third office in Satellite Beach, Florida and will continue to be available by appointment only at 100 Rialto Place, Suite 700 in Melbourne. Shuster & Saben, LLC defends homeowners in foreclosure. Lawyers in our firm have been featured in or quoted by Time Magazine, Univision, and the Daily Business Review. Shuster & Saben offers free consultation with an attorney and defends homeowners in foreclosure for $495.00 per month on loans under $500,000. When the firm defends a homeowners primary residence
Melbourne Phone: (321) 549-STAY or Toll Free: 877-511-STAY.

For More Information about Shuster & Saben, LLC, please see our website www.attorneyforeclosuredefense.com

When the S*&T Hits The Fan.

Boy it's a crazy day out there for South Florida lawyers, huh?

First there's this blockbuster story from the always intrepid Julie Kay taking a look at the John Leighton-Ira Leesfield breakup.

Among the more interesting allegations is that Ira installed spy software, bought lots of fancy things, and used his shop to bankroll Hillary's Florida campaign -- in other words, a day in the life at my firm.

Apparently, however, this was somehow problematic for Leigton:

The relationship nosedived when Leesfield failed to turn over the firm’s financial records shortly after Leighton became a name partner, the suit said. Leighton grew concerned about the firm’s expenses, overhead and compensation. At the same time, Leesfield would continually lecture Leighton about curbing his expenses.

“In 2007 and 2008, Leesfield spent several months away from the law firm and the active practice of law pursuing personal interests including serving as the finance chairman for Hillary Clinton’s failed presidential campaign,” the complaint states. “Much of the time that Leesfield actually spent in the office was used to solicit contributions for Hillary Clinton, and Leesfield as it turns out was using the law firm’s resources including staff, offices, postage, office supplies and other items to fund Leesfield’s personal political interests for Hillary Clinton causes.”

Leesfield “became confrontational, dictatorial and verbally abusive” when Leighton asked about firm finances, the complaint said.

Hall does not deny Leesfield spent a lot of time working for Clinton.

“He has a lot of causes he believes in, and he has earned the right to work on them,” Hall said.

Leighton suspected the firm was paying for Leesfield’s personal expenses including “vacation homes, parties, meals, entertainment, travel for himself and his family, clothing, luxury items and social, political and personal activities that were completely unrelated to the law firm’s business,” the complaint said.

Leighton also accuses Leesfield of putting his daughter on the firm’s payroll when she worked only sporadically and renting office space he and his wife personally owned at rates above fair market value.

Hall said Leesfield’s daughter, who does public relations for the firm, is actually underpaid for the work she does and Leighton, not Leesfield, is the big spender. “He had to have a $110,000 car,” Leesfield said.

Leesfield installed computer surveillance and keystroke logging technology to spy on his employees, the complaint said. By last December, Leesfield determined Leighton had obtained access to the firm’s records and confronted him.

“You work for me,” he yelled, according to the complaint. “This is my firm!”

Again, I pretty much yell something along those lines at somebody every single day.

In fact, in honor of Ira I just screamed those exact words at the lady who brought me a cafecito a few moments ago (of course she snickered and muttered something about my mother playing bingo or pingo or she's a penguin? -- I didn't really pay attention.)

You can read Leighton's complaint here.

Then we have Hank Adorno's response to a motion to strike his affirmative defenses in the bar proceedings, where he says Judge Peter Lopez must have known it was an individual settlement because otherwise we all would have had to have a fairness hearing. Even though it was for $7 million bucks!

(Nice negotiating, btw, Joe Arriola.)

I also enjoyed the part (page 9) where Hank explains that the only reason his firm did not pursue substitute class reps to carry on the class case after the individual settlement was because his partner Mitchell Bloomberg was undergoing aggressive treatment for lung cancer.

Also Sandy Bohrer has vouched for the individual settlement and Hank passed a polygraph test!

You can read the response here.

Sheesh -- and Friday's not even over yet, peoples.

D'oh!

Have you seen this letter sent to local blogger Random Pixels by GT attorney Ian Ballon on behalf of his client the Miami Herald?

I guess the Herald is upset over whether or not photos from their website are reproduced on blogs in thumbnail or "full-size"?

As if that determines whether or not the photos fall within the protections of the fair use doctrine?

Here is Ian's contention:

"Because fair use looks to the amount and substantiality of the portion taken (both in terms of quality and quantity), reproducing entire articles, large excerpts of articles or large-size photos is not permitted."

This sweeping generalization -- with no context and zero case citation -- is almost certainly wrong.

This is one of those examples where, as a lawyer, you have to talk to your client. Is it in your best interests to go after some local blogger for posting a picture? Is that really what you want your resources and attention focused on? Even if you had a colorable argument, is it a fight that is in your best interests to pursue?

(Though I appreciate that Ian's letter is somewhat restrained and not as dickwaddy as it could have been, I still would have advised against it).

My advice here would be, for the most part, to ignore Ian's letter. If there are "copies of entire articles" on his blog (which I understand are simply historical in nature and not lifted from the Herald online archives), I would edit them slightly so you are in compliance with Ian's demand.

The balance of the letter is wishy-washy and doesn't really require any further action, so I wouldn't take any.

Ian, I just gotta know something -- did Glenn Garvin put you up to this?

Don't Like Arbitration Award? Have District Court Confirm It First.

This is a pretty clever resolution to an arbitration problem that was just affirmed by the 11th Circuit.

Problem was some monies were not properly credited to one of the arbitrating parties because the issue was not discovered until after the arbitration award.

What to do?

According to the 11th Circuit, the procedure adopted by the district court was kosher -- move for a judgment confirming the arbitration award, then seek to have the judgment modified under Rule 60(b)(5).

Huh?

It actually makes some sense, and I urge everyone to read the thoughtful opinion.

I told you we had some smart judges within the 11th Circuit!

Law Updates for August 14, 2009

Flowers, 34 FLW 1577, 4th DCA, Confidential Informant (CI) - Police had probable cause to seize the def when he arrived at a parking lot where CI had arranged to meet the def, given that the police confirmed informant's reliability by matching apt address and vehicles which informant id'd to def's driver license and vehicle registration, and by observing def arrive for another drug buy at specific time and place at which the def told him and given informant's statement he repeatedly bought drugs at def's apt in recent past. K-9 alert to def's vehicle gave police further cause to search the vehicle. Probable cause for issuance of search warrant for def's apartment based on informant's corroborated knowledge and results for vehicle search.

Cobb, 34 FLW 1600, 5th DCA, Hearsay-Dying Declaration- Although murder victim's dying declaration was testimonial, trial court did not err in allowing officers to testify as dying declaration is an exception to the Sixth Amendment Confrontation Clause. Def's right of confrontation was not violated because he had opportunity to cross-examine the officers about the dying declaration.

Gil, 34 FLW 1602, 5th DCA, Due process was not violated by police act of notarizing affidavits that had been signed by a CI using a fictitious name. Use of false name was for purpose of protection. Erred but did not intent to commit a fraud when he notarized the affidavits. Learned from his mistake and now includes the term "alias" on future affidavits.


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

Hey, At Least They Spelled The Name Right.

You know what they say about getting your name in the press -- it's all good.

So by that measure I suppose this is a positive development:

In March, a federal jury in Richmond, Virginia convicted Okun of wire fraud, money laundering, smuggling, perjury and conspiracy, following a three-week trial.

Earlier this month, a federal judge sentenced the Miami businessman to 100 years in prison and to forfeit $40 million.

According to the filing, some of Okun's former lawyers have also agreed to make payments to the tax firm's estate to resolve possible claims.

Kluger, Peretz, Kaplan & Berlin PL will pay roughly $10.7 million, while Michael Rosen will pay $925,000, the filing shows.

Money shmoney, that's ok -- but no one touches the paintings!

BTW, check out the snazzy new KPKB website redesign.

3d DCA Watch -- Judge Shepherd Has Declined Your Invitation Edition!

Hi kids!

Well summer has finally made its way down to the fortified concrete bunker of justice, that hallowed spot by the highway where the Resplendently Robed Ones swill their free coffee and ply their shiny judicial wares.

Indeed, there are only two civil opinions this week, and one is a child dependency case, so that one doesn't even really count.

Still, let's take a look:

Valenzuela v. GlobeGround:

This is a gender discrimination case arising under the Florida Civil Rights Act of 1992.

The trial court granted summary judgment because the plaintiff did not satisfy the "similarly situated" prima facie requirement set forth in the seminal McDonnell Douglas opinion. The 3d affirmed Judge Glazer.

See, I'm not just obsessed with Iqbal or Venetian Salami. I know some other opinions too!

But McDonnell Douglas lacks a certain pizazz, if you will. It sounds like the name of a B-level actor from the 50s.

Plus it comes from 1973 -- a great year for films and music -- but otherwise a pretty crappy time for our country.

Sorry Miguel -- I'm sticking with what works.

RS v. DCFS:

Don't you just love the way Judge Shepherd frames his opinions, especially when he is trying to make a point about narrow statutory construction or the limited role of the judiciary:

By this appeal, the Department invites us to expand the definition of the “environment” in which a child “lives”—for purposes of attaining adjudications pursuant to this subsection of Florida’s dependency laws—beyond the limits to which we have heretofore expanded them: the child’s residence, see J.O. v. Dep’t of Children & Family Servs., 970 So. 2d 395 (Fla. 3d DCA 2007), and the curtilage surrounding the residence, J.C. v. Fla. Dep’t of Children & Family Servs., 937 So. 2d 184 (Fla. 2006). We decline the invitation.

Well, it wasn't really a formal invitation so much as you know, I'm going to the mall a little later and I thought maybe we could just hang out or something?

I mean, are you kidding, an invitation? You thought I was serious? I didn't want to go out with you either!

Seriously, though, for whatever reason, the statute says "live in an environment," instead of "reside in an environment" or "live in a home."

Is an "environment" the same as a home? Or is it intended to capture something more or different than merely the physical confines of an actual residence?

Let's see what Black's Law Dictionary says:

In performing our analysis, the Department would have us place our primary focus on the word “environment” in section 39.01(43). Focusing on this word, the Department argues the environment in which the child lives must include broadly “the totality of the child’s exposure.” We do not believe the phrase “live in an environment” can be interpreted so broadly. Rather, we are of the opinion that the focus should be on the word “live.” Although the word “live,” is not defined in section 39.01, we believe those who come within the purview of the statute would readily understand the word “live” and the phrase “live in an environment,” based upon ordinary meaning and common experience, to mean the environment or place where a person actually resides. Our conclusion is supported both by reference to the dictionary, see Black’s Law Dictionary 842 (5th ed. 1979) (“Live, v. “To live in a place, is to reside there, to abide there, to occupy as one’s home.”) (emphasis added), and the fact that in its initial filing in this case on July 27, 2007, the Department itself used the term “reside” in substitution for the word “live,” in making allegations relating to where the child lived for purposes of section 39.01(43).

First off, what term the Department used in a brief one time should have zero impact on a proper statutory analysis.

Second, if you are relying on Black's Law Dictionary as your primary authority -- along with "ordinary meaning and common experience" (the non-Wise Latina variety, of course) -- it's probably not as well-settled an issue in Florida as it seemed at the onset.

Finally, I wonder why Judge Shepherd went to Black's for a definition of "live" but not for "environment"?

Let's see if Black's Law Dictionary defines "environment" to be interchangeable with "place where a person actually resides" as Judge Shepherd used the word in the excerpt above.

Environment. The totality of physical, economic, cultural, aesthetic, and social circumstances and factors which surround and affect the desirability and value of property and which affect the quality of peoples' lives.

Yep, seems pretty narrow to me too -- an open and shut case!

Sealed!

Judge Thornton seals the Hirsch tapes:

A Miami Beach man attempting to overturn his DUI manslaughter conviction was handed a setback today when a Circuit Court judge ruled that a secretly made tape recording did not show prominent defense attorney Milton Hirsch urged his client to flee the country rather than face trial.

Judge John Thornton told lawyers for Sean Casey that he listened to the taped conservation "not just once, but several times" before he decided to permanently seal the recording, which makes it illegal to disseminate it or a transcript of the recording.

Don't worry -- the Eric Dane/Rebecca Gayheart threesome tapes are still available and do not appear to be subject to Judge Thornton's order.

So it's kind of a split-the-baby ruling.

BTW, Eric Dane and Rebecca Gayheart -- what a marriage!

Way to keep things fresh, you newlyweds.

Guy Bailey Jr. Disbarred.

Remember Guy Bailey?

He used to be a fairly prominent litigator who frequently appeared in federal court on commercial matters of various kinds.

Board-certified for many years, even filed a brief with Alan Dershowitz, partners with several lawyers in town.

I must have missed this, but he was disbarred for -- yep -- futzing around with client trust funds:

Guy B. Bailey Jr. of Miami, disbarred, effective June 13, following an April 23 court order. Bailey issued trust account checks to a client that were returned because of insufficient funds. He also failed to preserve client funds in accordance with Florida Bar rules regulating trust accounts.

Come on, folks -- you guys have to let me know these things.

Burton Young Schools George L. Metcalfe (Using Only Words!)

Most people are aware of (sick of?) Steve Zack's Claude Pepper impression.

Less known is my spot-on impression of friend and noted mensch Burton Young.

Sure it sometimes lapses into a passable George Burns, but when you think about it, so does Burt.

Anyway, Burt knows what he is talking about, and has this to say about the ban on gay adoption in Florida:

Florida’s bizarre “law” was passed more than 30 years ago during the anti-gay hysteria of Anita Bryant’s Save Our Children campaign. The ban on gay adoption was borne out of prejudice, plain and simple. It had no scientific predicate. Its backers were nothing more than lynch-type rabble rousers.

On an unrelated note, people are still writing angry letters about George L. Metcalfe's "ad" in the Florida Bar News.

I like how Burt cites his possible contemporary Charles Dickens:

“If the law supposed that,” said Mr. Bumble, …”the law is an ass …” (Dickens, Pickwick Papers, [1836-37]).

Indeed.

Free PACER?

Are you one of those cheapskates who can't afford $.08 per page just to see how brilliantly some lawyer cites Iqbal in a boilerplate motion to dismiss?

Well, your prayers have been answered (h/t to a loyal reader):

The Solution: RECAP, a Firefox-only plugin, that rides along as one usually uses PACER — but it automatically checks if the document you want is already in its own database. The plug-in’s tagline, ‘Turning PACER around,’ alludes to the fact that its name comes from spelling PACER backwards. RECAP’s database is being seeded with millions of bankruptcy and Federal District Court documents, which have been donated, bought or gotten for free by open-government advocate Carl Malamud and fellow travelers such as Justia.

And if the document you request isn’t already in the public archive, then RECAP adds the ones you purchase to the public repository.

The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten.

That’s a pretty good hack, but it’s still just a stop-gap measure until the federal courts figure out that in the age of the internet, charging citizens to search and read public documents should be a federal crime.

Should be fun until Judge Moreno finds out!