Happy New Year!

From your friends at South Florida Lawyers.

See you on the other side!

4th DCA Upholds Class Action Suit Against NBA Commish David Stern!

Well that's what it looked like when I opened up my Herald this morning, which had a file photo of NBA Commissioner David J. Stern accompanying this story about Plantation Foreclosure King David J. Stern:

A state appeals court in West Palm Beach has ruled a class-action lawsuit claiming Plantation attorney David J. Stern charged excessive fees to homeowners fighting their foreclosures can move forward, three years after it was first filed.

The 4th District Court of Appeal's opinion upheld an earlier decision by Palm Beach Circuit Judge Thomas Barkdull. Barkdull had granted class-action certification to a suit brought by Boynton Beach electrician Loren Banner against his lender, Wells Fargo Bank, Stern and Stern's firm, which handled Wells Fargo's foreclosure work.

Who says the Herald doesn't break news?

(That Stern is one busy cat.)

Can We Call 2010 Already?

Just asking.

Juvenile Convictions - More Trouble Than You Think

Juvenile cases are no joke. Many people scoff at the idea that anything serious will result from juvenile charges because they simply do not know the reality of the juvenile court system. Charges a child receives can and will follow him into adulthood. Perhaps the most important thing to note about juvenile court is the consequences a juvenile conviction poses. Many participants are under the impression that a juvenile conviction has no meaning and that it won’t “count” as an adult. This is a huge misconception. Under Florida Statute 921.0021, “Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” This means that juvenile convictions can count on an adult score sheet, which ultimately means that an 18 year old could score prison time on a first time adult offense.

When little Johnny is charged with battery after a neighborhood fight, he may get only a slap on the wrist, do some community service hours with the Boys and Girls Club, and have to write an apology letter. Everyone will jokingly say “boys will be boys!” and the whole incident will soon be forgotten. Then, when that same Johnny gets into a bar fight as an adult, those conviction points from his juvenile case could very well help land him in prison. On a first adult conviction. Better yet, on an adult conviction that, without the juvenile points, would likely have been resolved with probation. The old maxim that “boys will be boys” is no longer as endearing as it once seemed.

Juvenile Court handles the criminal cases of people who are arrested when they are under the age of 18. Juvenile Court is similar to “Adult Court” in many notable ways: minors who are tried in juvenile court have the right to an attorney, to remain silent, to confront witnesses and cross-examine witness testimony, to call witnesses, and to not incriminate themselves. Despite the similarities, it is important to understand that juvenile court is still separate from the adult court system and has different procedures and policies. The main difference: there is no right to a jury trial in the juvenile court; everything is held before a juvenile court judge. And, while juvenile cases generally result in rehabilitative treatment instead of incarceration, the court could detain a juvenile in a detention center for 21 or 30 days without bail in the case of a serious crime.

An important thing to note is that there is no guarantee that a person under the age of 18 will be sent to juvenile court. In fact, if the individual is close to the age of 18, has been charged with a violent crime, or is considered a "repeat offender," he may be tried as an adult in the regular criminal system and could face the same penalties as an adult.

Now it is easy to see why juvenile court cases should be taken just as seriously as adult cases. This is why minors should never speak to the police or authorities without legal counsel, or at least parents, present. Not only can what they say be used against them in court, but often, minors do not even realize what they are saying is incriminating. Parents seem to think that it's helpful to talk with the authorities, but it is important to remember that law enforcement officers are not usually a minor’s friends. Classroom lectures and after-school specials on TV would have youngsters believe that police officers are their best friends and that they should always talk to them because it’s the “right thing to do.” Wrong. Officers are there to do their job, which is to get evidence for their case, the outcome of which could affect that minor for the rest of his life. An adult would never talk to an officer about a pending criminal investigation without legal representation – and neither should a child.

11 year old Sallie is trying to break up a fight between two of her friends. She admits to the officer that she pushed someone in the process. Now she is charged with Battery. Did she technically do anything wrong by trying to break up the fight? No. But she did just get herself into trouble by explaining what she thought was a harmless scenario to an officer she wrongly believed would understand her side of the story.

This is not to say that honesty isn’t the best policy, as we all preach to our children from a young age. This is to say that silence is golden. A minor may think that he is “doing the right thing” or “helping” by talking to the police, but 9 times out of 10, he is only digging his hole deeper. He’s giving the police the evidence they need to arrest him, and usually he doesn’t even know it.

A lot of parents seem to want to “teach a lesson” to their children who have gotten into criminal trouble by telling the police to take them to jail. While this is an honorable, and certainly understandable, response to the situation, it really does more harm than good. “Let him sit there overnight and think about what he did,” is often the parent’s response. Or, even worse, “Timmy – you had better tell the officer the truth about what you did!” Maybe Tiny Tim will learn his lesson by being punished that way, but then later on in life when he gets a DUI or holds weed for a friend or is in trouble for carrying a knife that he didn’t realize was concealed, that childhood night in jail and forced admission will come back to haunt him.

Parents – do your kids a favor and don’t get them into trouble criminally. Ground them. Lecture them. Make them clean the house or run suicide sprints like a basketball coach. Embarrass them by supervising all of their dates. But don’t force them to talk to the police without a lawyer, and don’t make them sit in jail over night if you can help it. Juvenile convictions can have much larger effects than are immediately apparent and can be crucial later on in life.

The motto of the Juvenile Justice System is to "increase public safety by reducing juvenile delinquency through effective prevention, intervention and treatment services that strengthen families and turn around the lives of troubled youth." Rehabilitation and prevention are often used in place of punishment, and the sentences in juvenile court are generally “soft.” Minors who have stolen from others, or physically harmed someone, or even possessed drugs are often sentenced to community service hours and letters of apology instead of the incarceration they would be facing if they had committed the same crime after the age of 18. Although this means that juveniles often get what is viewed as a mere slap on the wrist, like little Johnny or Tiny Tim initially did above, juvenile court also gives young adults the opportunity to change their behavior and habits that they would not get if they were sent to adult court. They get a second, and often third, chance to straighten up. And if they do not, if they keep their bad behavior and continue to get into trouble, it will catch up to them.

One final important note: Police Officers can lie to juveniles. They can say anything they want and hold whatever a juvenile says against him, even if the juvenile’s parents or attorney were not present. Officers do not have to inform minors that they have a right to have their parents present; juveniles have to request to have their parents present, and they always should.

If you know a minor who is facing the juvenile justice system alone, have them contact a qualified attorney.


Legal Disclaimer: This information is not intended to create, and receipt or viewing of this information does not constitute an attorney-client relationship nor is it intended to be legal advice for any individual case or situation. You should consult an attorney regarding your individual case.


Copyright (c) 2010, Law Office of Roger P. Foley


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

Does Eric Shane Have a Case?

 

Hmm, this seems more like that other Lottery than a nice friendly Village game among friends:

Seven members of a lottery pool in this huge retirement community are accused of cutting out an eighth member from a $16 million jackpot, according to a lawyer representing the woman who is suing to get her share.

"It's unfortunate," said Eric Shane, a Miami lawyer for Jeanette French, 72, who has been a member of the weekly pool for nine years and stands to lose a $1.1 million cut. "She really did consider them friends."
French and all but one of the pool members had worked together at the Hacienda Hills Country Club golf shop in The Villages, which bills itself as America's friendliest hometown. One of the members is listed as the club pro, Robert Jacobus.

But cutting out French, each of the pool members would collect an extra $165,265.53, pre-tax.

According to a civil lawsuit filed in Sumter County, the lottery group's usual practice was to collect money from each player, write the player's name on an envelope and then deposit the tickets in the envelope.

Shane said the group ordinarily covered the $1 entry fee for a pool member who was not at work or who did not have the cash on hand. French was not at work when the money was collected for the Dec. 15 drawing.

But, according to a sworn statement signed by French, pool member Richard Ciccone, 69, called her at home and asked if she wished to play. She said she did. When she arrived for work Dec. 16 — before the players had checked the ticket against the drawing's numbers — Ciccone informed French, "You owe me money" and she paid him.

He then gave her the ticket to check the numbers.

Shane said French compared the numbers and excitedly told Ciccone that they had won and gave him the ticket to doublecheck.

"She didn't think twice about keeping the ticket," Shane said. "They were all friends."

But French was forced to file a lawsuit last week to protect her right to an eighth of the jackpot because she learned that the other pool members planned to split the winnings only seven ways.

"Upon learning of the winning ticket, I was coldly informed that despite my conversation on Dec. 11 with Ciccone, and my years of consistent contribution and membership, my name was 'left off the envelope' and I would not take part in sharing the lottery winnings," French said in an affidavit, which was attached to the lawsuit.

Oh boy -- nothing in writing, an alleged custom and practice that the other friendly Villagers will surely disavow, oral agreements regarding potentially large sums of money.

Does anyone think Eric has a case?

BTW, note to the nice looking guys at Ferrer Shane -- why are all of you folding your arms?

Body language experts tell us folding your arms is defensive, suggesting a closed mind and unwillingness to hear what the person across from you has to say.

On second thought, maybe not a bad pose for a lawyer.

3d DCA Watch -- Ah Yes, Venetian Salami.

WH Smith v. Benages:

My work here is done.

Law Updates for December 24, 2010

Myles, 35 FLW 2819, 3rd DCA - DNA match with in the State Index Data Bank for unresolved crimes resulted in "cold hits" for unsolved rapes.  Probable cause for the arrest of the def, and DNA swabs taken after the arrest were admissible.

Watana, 35 FLW 2824, 4th DCA, Consent, Voluntariness -  Record supports trial court determination that there was no voluntary consent to search def's person even though def was properly stopped for speeding. Trial court was free to reject ofc's testimony that when he asked the def to step out of the vehicle, and then for permission to search his person, def complied with all the ofc's request without withdrawing or resisting consent.  Court finding any consent given was submission to authority and not voluntary, supported by competent evidence.  Nothing in record to indicate that a search of his person was anything more than one step in the ticket writing process.

Neal, 35 FLW 2835, 4th DCA, Evidence - Trial court erred in allowing police ofc to testify it is common not to find a gun in armed robbery cases.  Testimony describes general behavior and, used to bolster the charge this was an armed robbery even though no gun was found or linked to the def, was prejudicial and not harmless.

Barrios, 35 FLW 2837, 4th DCA - Prosecutor's comments during closing argument asking the jury if they would allow the def to get away with it and arguing the only true and just verdict was guilty was improper and prejudicial-new trial.

Lewis, 35 FLW 2848, 4th DCA, Kidnapping - Court should have granted a JOA, Def's actions of ordering store manager to a different room of the store during the robbery, ordering manger to lie on the floor, and unlocking one of the handcuffs so that neither victim was bound or barricaded when the def fled insufficient to lead to the separate crime of kidnapping.

Higerd, 35 FLW 2874, 1st DCA - Possession of child pornography in Airline luggage.  First Impression, Administrative search of an accordion folder inside def's checked baggage by TSA officer.  Bag was randomly selected.  Physical administrative search of luggage was not unnecessarily extensive or inclusive and did not violate the 4th A. TSA officer stopped as soon as saw the pictures and contacted police who got a warrant.  Even if search violated 4th A., good faith exception to warrant applies because TSA officer would not have known search was illegal.

McCoy, 35 FLW 2876, 1st DCA, Trafficking in Hydrocodone - Jury Instructions.  Trial court's failure to instruct the jury on prescription defense that the wife was holding her husband's medication was fundamental error, an error compounded by the prosecutor's closing arguments that there was no defense to the def's possession of the pills, where presenting an "affirmative defense" has to prove fundamental error for lack of the jury instruction which was done here.

Davis, 35 FLW 2882, 1st DCA,  - Error to admit testimony of police investigator recounting statement of witness who had previously confessed to the investigator and implicated the def, but who testified at trial he was unable to remember anything about the incident except that he was one of the robbers.  Testimony did not fall into the exception about statements identifying a person which applies if the declarant was an eyewitness or a victim or after perceiving that person soon after the crime or coming in contact with her.  Officer's testimony could not be used as impeachment as the witness said he did not remember anything and no evidence that the witness appeared to be fabricating lack of memory.  Not harmless error

Gentles, 35 FLW 2900, 4th DCA, - Seizure occurred when ofc directed the def  to turn off his car engine, when ofc notified the def asleep in his parked car with motor running during early morning hours in a shopping mall. Seizure not based on reasonable suspicion of criminal activity or specific concern for officer safety or the health and safety of def or others.  Trial court erred in denying the motion to suppress.



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

3d DCA vs. 1st DCA -- Let's Compare Courthouses!

There is an unintentionally hilarious article in the Florida Bar News that curiously does not involve or even mention my pal George L. Metcalfe.

It purports to compare the palatial "Taj Mahal" like new 1st DCA facility with, of all things, our own little bunker.

Let's see how we stack up!

** Fasano was critical of a rubber-floored exercise area in the new First DCA, which he referred to as a gymnasium. But other DCAs also have exercise areas. But all are ad hoc, set up in storage areas or mechanical rooms and using donated equipment.

That's right --  I know this because I personally donated my old vibrating belt, which you can see in use at the 3d DCA closet/gym in this undated photo:

I also gave them my old medicine ball and a pair of kettle bells -- hey wait, all these things are making comebacks!

** Fasano also noted that the First DCA “gymnasium” had an attached shower room and wondered how common that was. All of the other DCAs reported having showers although they were part of restrooms. Most reported one or two showers for each gender, with the exception of the Third DCA, which has separate showers in seven of its judicial suites.

Let's see, ten judges but only seven showers -- that math works for me.

** The private bathrooms for judges at the First DCA also have garnered attention. They include a toilet, a mahogany medicine cabinet, and a marble-topped small vanity with sink, in a space about the size, or perhaps a little larger, of a bathroom in a typical home. Every other DCA, with the exception of the Second DCA’s Tampa branch courthouse, also include bathrooms for judges, although smaller. Suhr noted the Second DCA’s bathrooms are four by six feet — less than half the size of the First DCA’s. Third DCA Marshal Al Sadowski said the small judicial bathrooms there each have a toilet and a sink bolted to the wall.

Bolted to the wall?  You mean like in prison?

** Fasano also criticized the kitchens in each judicial suite, which feature a sink and a long, marble-topped counter over painted cabinets. The Second and Third DCAs do not have kitchens in the judicial suites.

Excuse me, but is someone forgetting a certain coffee maker?

Anyways, I'd take a private shower over a kitchen any day.

** In appearance, there is little in common between the new First DCA courthouse and other DCA courthouses. Those are one or two story structures where any columns appear to be almost symbolic, while the First DCA features large columns inside and outside of its three-story home. None of the others include domes, which is an architectural highlight of the First DCA structure.

This is unfair -- I believe the bunker's architecture speaks for itself.

(Oops -- have I gone too far?)

11th Circuit Thinks Bill Amlong Should Have Used X-Ray Glasses!

The meatball man does a nice job covering it, but I want to add a few points about this extraordinary 11th Circuit opinion sanctioning Bill and Karen Amlong.

Preliminary question for Judge Carnes -- why do you note on page two that the plaintiff is an "illegal immigrant"?

Regardless, the good Judge, in a 74-page opinion(!) pulls no punches:

The Amlongs’ attempt to alter their client’s deposition testimony in 868 ways was of a piece with their conduct throughout the litigation. As the magistrate judge found, they had nothing to base Norelus’ claims on other than her “own changing testimony . . . which was totally or nearly totally discredited by plaintiff’s numerous lapses of memory, outright lies, and outlandish comments made during her deposition.” As the litigation unfolded, all of the witnesses  who should have seen or heard something if the claims had any basis in fact not only failed to support her incredible story but actually gave deposition testimony contradicting it.

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her.

When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

It goes on from there, though the Judge does end with a thoughtful "Season's Greetings"!

Thankfully I choose not to do this work, but is there an argument to be made that the co-workers are worried about their jobs and thus did not corroborate the plaintiff's testimony?  Also, that the plaintiff speaks Creole and the deposition required an interpreter?  Also that the Amlongs submitted the client to two polygraph examinations that she apparently passed?  Finally, that the Amlongs are being sanctioned for trying to fix mistakes in the deposition testimony and informing opposing counsel, as opposed to letting it slide?

I admit this case presents a close call, on difficult facts.  But the apparent glee with which Judge Carnes targets the Amlongs seems to me somewhat over the top.

And the prolix opinion, which exceeds the evil errata sheet by 11 pages, will create lots of uncertainty below when imposing  § 1927 sanctions on attorneys, as well as generally mess up the previously settled law dealing with errata sheets and their proper function in depositions.

Judge Tjoflat, in a blistering dissent beginning on page 76, seems to agree.

In fact, he doesn't even think what Karen Amlong submitted to defense counsel was an errata sheet:

The Amlongs did prepare the sixty-three page document, which they labeled “errata sheet” (“‘errata sheet’” or “errata document”), but they did not present it to the court reporter, as Rule 30(e) of the Federal Rules of Civil Procedure requires, so it could be attached to the certificate the reporter affixed to Norelus’s deposition in accordance with Rule 30(f). In short, the sixty-three page errata document was not an errata sheet as contemplated by the Federal Rules of Civil Procedure. Rather, it constituted nothing but a written communication, a letter, from Karen Amlong to defense counsel, in which Karen Amlong informed defense counsel—in keeping with her obligations under the Florida Rules of Professional Responsibility—that her client had testified falsely on deposition and provided the statements she believed her client should have made when deposed. As a consequence, the communication, instead of multiplying the proceedings, informed defense counsel that Norelus had made statements to her attorneys which,when compared to what she had said on deposition, cast substantial doubt on her credibility.

Had defense counsel explained all of this to the district court, the court would have disregarded the “errata sheet” and declared that the Norelus deposition transcript certified by the court reporter constituted Norelus’s deposition; Denny’s, Meos, and Jawaid would not have incurred $387,738 in subsequent attorneys’ fees and costs; and the court would not have sanctioned the Amlongs under 28 U.S.C. § 1927 in that amount.

See kids?

Bad facts make bad law.

Change Partners.

Once again the Intrepid One™ breaks news:

Casey, who starts Dec. 31, is bringing along partners Richard Tuschman, Kevin Vance and Hector Chiconi as well as associates Teresa Maestrelli and Mark Beutler, a paralegal and an undetermined number of office staff. All the lawyers practice in labor and employment except Chiconi, who has an immigration practice. The only remaining partner at EGB, Robyn Symons, is in discussions with Duane Morris.

Also joining Duane Morris from EGB will be Eddie Feenane, a longtime recruiting and administrative head who cut his teeth at Steel Hector & Davis. Feenane will coordinate recruiting, marketing and business development efforts for Duane Morris’ Miami and Boca Raton offices.

According to a source close to the firm who did not want to be identified, the group is departing EGB partially due to its lack of a full-service platform and partially due to financial reasons.

"No one wants to refer cases to other firms," the source said. "Additionally, they haven’t kept competitive on salary and bonuses."

Congrats to a fine group of lawyers and we wish them the very best.

Totally unrelated, but I really enjoyed Mike Myers in Austin Powers.  I sure hope he keeps that franchise going.

All Hail Blogger Fantasy Football Winner!

It's really nice to receive all the warm accolades from fellow local legal bloggers on winning this year's fantasy football league.

Thanks again for all the kind words.

Spencer Aronfeld Holiday Card!

He took off his glasses and everything!

Shuster & Saben Sues Strategic Recovery and Vantium Capital

Shuster & Saben, LLC, filed suit in Brevard County against Strategic Recovery Group, a division of Texas based Vantium Capital. This lawsuit was filed on behalf of Brevard County homeowner who the firm is defending in a foreclosure action. Prior to retaining the Shuster & Saben, the client filed a Chapter 7 (liquidation bankruptcy) and obtained a discharge of his personal obligation on Home Equity Line of Credit (HELOC) on his home. At the time our client filed bankruptcy, the HELOC Mortgage was held by Wilshire Bank. According of documents received by the firm, despite the fact that our clients debt was discharged in bankruptcy and the fact that our clients home is worth $50,000 less than the loan balance on his first mortgage, Wilshire sold the loan to Bank of America, who retained Strategic Recovery to attempt to collect on the debt.

The client initially retained the Melbourne office of Shuster & Saben to defend a first mortgage filed against his home by CitiMortage. The client brought us a letter he received from Strategic Recovery because he was concerned as why Strategic was seeking to collect a discharged debt. Our firm commenced an investigation to confirm that the original creditor was notified of the bankruptcy and sent Strategic Recovery a Qualified Written Request (QWR) pursuant to RESPA, ( Real Estate Settlement Procedures Act ) and request for verification of the debt pursuant to the Fair Debt Collection Practices Act.

When we did not receive written confirmation for Strategic Recovery that they were abandoning collection activity suit was filed in Brevard County Court against Vantium Capital, the parent company of Strategic Recovery. The firm continues to defend the foreclosure action filed by first mortgage holder, Citimortage, a separate case that is now over two years old.

To view a redacted copy of the law suit filed against Strategic Recovery please click the link below.

Strategic Recovery Lawsuit

About Shuster & Saben:
Shuster & Saben is a civil litigation firm of seven attorneys that defends foreclosures from four offices located in Miami, Doral, Fort Lauderdale / Plantation, and Melbourne, Florida. We believe the best defense is a good offense. If a lender, loan servicer or bill collector violates the law in their attempt of collect on a debt allegedly owned by our client we will not hesitate to sue the offender and use such suit for leverage to achieve our clients desired resolution. We believe there is a difference between foreclosure delay and foreclosure defense. Click here to find our why we are different or e-mail foreclosuredefenselaw@gmail.com with your Florida foreclosure questions.

Gene Stearns Doesn't Think Judge Ungaro Did That Good a Job Presiding Over His Trial.

Bank Atlantic New Trial Motion

I'm paraphrasing, but that's the takeaway from BankAtlantic's motion for new trial, which through the magic of Scribd you can gaze at above.

Foreclosure Follies -- Lawyer Whack a Mole?

Hi kids!

Welcome back to lawyer purgatory, that period between Christmas and New Year's where everyone pretends to be working but nothing gets scheduled and no one really does anything again until next year anyways.

Ever wonder what happened to youngin' lawyers doing foreclosure work at David Stern's shop?

The pups just moved along to another foreclosure joint:

'A game of Whac-A-Mole'

The Atlanta-based McCalla Raymer law firm, which handles foreclosures for mortgage giant Fannie Mae in Georgia, hopes to do the same in Florida. In November, as the firm began setting up shop in Orlando with 10 former Stern attorneys, disgruntled homeowners in Georgia filed a federal class-action lawsuit against the firm, claiming it used forged documents to take their homes, often while they were in the midst of modifying their loans. This month four other Georgia homeowners - who are representing themselves - have filed similar lawsuits against McCalla Raymer.

The firm initially registered to do business in Florida as McCalla Raymer Florida LLC but dissolved that firm a month later and is now registered to do business in Florida as Stone, McGehee & Silver. The firm, which hired former Fannie Mae associate general counsel and foreclosure expert Susan Reid last month, has plans to expand throughout Florida, advertising for attorneys in Tampa, Fort Lauderdale, Miami and Orlando. While at Fannie Mae, Reid worked with foreclosure attorneys in its retained attorney network, including those from Stern's office.

The Fort Lauderdale-based Law Offices of Marshall C. Watson has picked up five former Stern attorneys, while Shapiro & Fishman, with offices in Tampa and Boca Raton, has hired one. Both firms, as well as Stern's company and the Tampa-based Florida Default Law Group, are under state investigation.

Other lawyers who have left Stern's company are now earning a living at several Fannie Mae-designated foreclosure firms, such as Ben-Ezra & Katz in Fort Lauderdale and Kahane & Associates in Plantation.

"We did a thorough vetting of the Stern attorneys," said Marty Stone, a managing partner with McCalla Raymer. "I don't want to say we weren't concerned at all, but I do think there is a danger of painting with too broad of a brush."

Still, the distribution of former Stern attorneys to other firms feels like an injustice to some home­owners in foreclosure.

In sworn statements taken by the state attorney general's office, two former Stern employees - a paralegal and a legal assistant - attest to wrongdoing at the firm that included hiding problem files from federal auditors, forging signatures and making up documents as staff struggled to keep up with a mounting volume of foreclosures.

"It's like a game of Whac-A-Mole - these unethical, dangerous attorneys just pop up somewhere else," said Lisa Epstein, a home­owner advocate in Palm Beach County who runs the website Foreclosure Hamlet. "The Florida Bar has proven that they have no intention of disciplining these unprofessional attorneys."

 Hmm.  But for the necessity of having a live lawyer body at court hearings and mandatory mediation, I wonder whether this work wouldn't all be outsourced to India?

And young lawyers do need to pay for that education, but at a certain point I'd rather be flipping burgers in Boca than doing this kind of soul-sucking drudgery unrewarding grunt work.

Merry Christmas, Baby!

Meet you under the mistletoe.

Neil Rogers RIP

It is with great sadness that we note the passing of Neil Rogers.

Neil was a formative influence in my life and helped shape who I am today.  He was smart, funny, irreverent, fearless, and spoke -- sometimes yelled -- truth to power.

Even when he started in South Florida, doing "issue" radio in the mid-70s, he was sui generis.  Although Neil followed in the footsteps of other brash Miami radio icons such as Alan Burke, his persona was entirely different -- Neil knew his yiddishisms, like Burke did, but he took his personal obsessions, quirks, and idiosyncrasies and made them compelling, groundbreaking entertainment.

By the time he abandoned the issue format and let loose his freewheeling mix of hockey, horse racing, movies, politics, cheapskate Canadians, fart jokes, song parodies, and condo commandos, Neil was in orbit and brought his listeners along for the ride.  He exposed phonies, fraud, injustice and pretense, joked about the petty frustrations of life in South Florida, battled with his radio colleagues, censors and management, and proudly wore his political leanings and sexuality on his sleeve at a time and in a place (sports radio) where neither were especially welcomed.

Thank you Neil for saving so many of us, along with all the jokes.

Law Updates for December 17, 2010

Dennis, 35 FLW 731,S. Ct., Stand your ground immunity.  Trial court should decide the factual questions of the applicability statutory immunity, 776.032, should not be a C 4 Motion but a Motion to Dismiss under 3.190(b).

K.C., 35 flw 2694, 4th DCA, Possession of BB gun on school property.  Evidence was insufficient to prove that BB gun juvenile with possessing was a deadly weapon, where it was in a book bag, not loaded and no evidenced used or threatened to use the BB gun as a bludgeon.

C.N., 35 FLW 2699, 2nd DCA, Disorderly conduct.  Error to adjudicate juvenile delinquent for DOC for shouting and using foul language.  No evidence that the juvenile's words either caused crowd to gather or incited the crowd to engage in an immediate breach of the peace.  Officer did not have a reasonable suspicion that juvenile was committing a crime and was not performing a legal duty when he arrested the juvenile without a warrant for that offense.  Error to adjudicate for the resisting charge.

Redd, 35 FLW 2706, 1st DCA, Trafficking in Cocaine.  Double hearsay elicited by the state and heavily relied on to prove that the def was in possession of cocaine was not admissible and def did not open the door to its admission.  Without hearsay statements state would not have been able to prove that the def had dominion and control over the contraband, knew of its presence, and knew of its illicit nature.  New trial required

Freeman, 35 FLW 2748, 2nd DCA, Voir Dire.  Error to deny challenge for cause for juror who expressed some doubt about her ability to be fair and impartial in her assessment of witness's credibility, stating she might give more credibility to police officers(Police officers in her family).  Preserved for appeal properly, not required to show legally objectionable juror on the jury.


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

Cops GPS Tracking | Hit and Run | Florida | Tampa | St Petersburg

GPS Hit and Run

A St. Petersburg Police Department Officer was acquitted when he went on trial for hit and run in his police car. During the trial there was testimony that "exposed some embarrassing revelations for the St. Petersburg Police Department when [the cop] testified that he disabled the tracking device on his police cruiser several times so that his superiors couldn't tell where he was or how fast he was going."

Other cops said that "it's no secret" how to disable the devices, according to the St. Petersburg Times. Notably, we recently used the patrol car GPS to question the credibility of a police officer in a DUI case. The GPS data is sometimes embedded in the DUI videos made in patrol cars used by DUI squad cops.

If you have been charged with TRAF2012 Leaving Scene Of A Crash With Injury you can call a Tampa Criminal Defense Lawyer at 1-877-793-9290 and tell me your story.

Form Code: TRAF2012

Florida Statute: 316.027.1A
Level: Fel (Felony)
Degree: 3rd
Description: Leaving Scene Of A Crash With Injury

316.027 Crash involving death or personal injuries.

(1)(a) The driver of any vehicle involved in a crash occurring on public or private property that results in injury of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

316.061 Crashes involving damage to vehicle or property.

(1)The driver of any vehicle involved in a crash resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop such vehicle at the scene of such crash or as close thereto as possible, and shall forthwith return to, and in every event shall remain at, the scene of the crash until he or she has fulfilled the requirements of s. 316.062. A person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

316.062 Duty to give information and render aid.

(1)The driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his or her name, address, and the registration number of the vehicle he or she is driving, and shall upon request and if available exhibit his or her license or permit to drive, to any person injured in such crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash and shall give such information and, upon request, exhibit such license or permit to any police officer at the scene of the crash or who is investigating the crash and shall render to any person injured in the crash reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

(2)In the event none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (1), and no police officer is present, the driver of any vehicle involved in such crash, after fulfilling all other requirements of s. 316.027 and subsection (1), insofar as possible on his or her part to be performed, shall forthwith report the crash to the nearest office of a duly authorized police authority and submit thereto the information specified in subsection (1).

(3)The statutory duty of a person to make a report or give information to a law enforcement officer making a written report relating to a crash shall not be construed as extending to information which would violate the privilege of such person against self-incrimination.

(4)A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.

Source: http://www.tampabay.com/news/publicsafety/crime/police-officers-testimony-exposes-practice-of-disabling-gps-trackers/1141567

Odds and Sods and William Levy

Hi kids, are you still at work?  I sure hope not.

My friend Tom Spencer wants you to be afraid, be very afraid of Saddam Ahmadinejad Rev. Wright Bill Ayers Kenya saying "happy holidays" Wikileaks.

Hey, Christmas truly is beloved by everyone!

One of my most-viewed posts deals with the lawsuit that Spanish-language soap opera star William Levy brought against an LA attorney over allegations of forced oral sex and venereal disease.  The case is pending before Judge Moreno.

Now it appears Levy's attorney, Ralph Patino has sought leave to filed a second amended complaint, chock full of additional allegations.

You can take a deep breath and review the proposed amended complaint here.

Destruction of Evidence | Jury Instruction | Criminal Case | Rare Ruling

Destruction Jury Instruction

Tampa Cyber Crime Attorney just received this tip from a source. “A recent non-published opinion [Florida Criminal Defense Cyber Crime Attorney Lawyer for your convenience we have published it here ] from the District of New Jersey (United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010)) will be of interest for those who are following issues involving electronic discovery in criminal cases. In this case, the court imposed an adverse jury instruction against the government when it failed to preserve text messages that were sent between FBI agents and a cooperating witness. The instruction allowed the jury to infer (though did not require) that the deleted messages were favorable to the defendant. The issue of spoliation of evidence is frequently litigated in civil electronic discovery cases, but this is one of the first known cases to address spoliation of electronic discovery in the criminal context. Though the opinion is not for publication, counsel will want to consider that communications between agents and witnesses can often [sic] be in electronic form, and to remember this reality with when they or the defense team communicates with their own witnesses. It is hard to say what affect the jury instruction had in this instance, but it is worth mentioning that Mr. Suarez was ultimately acquitted.”

Case Excerpts:

“The key considerations for determining the appropriate spoliation sanction (e.g., dismissal, suppression, fines, or an adverse inference instruction) are:

(1) The degree of fault of the party who altered or destroyed the evidence;

(2) The degree of prejudice suffered by the opposing party; and

(3) Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994).”

“The Court finds the adverse inference instruction appropriate because:

(1) The text messages were within the Government's control;

(2) The text messages were intentionally deleted by the agents, and the U.S. Attorneys' Office failed to take steps to preserve them;

(3) The text messages that were deleted or not preserved were relevant to claims or defenses; and

(4) It was reasonably foreseeable by the Government that in the context of this investigation and in light of the actions of the cooperating witness the text messages would later have been discoverable.

These findings by the Court fall squarely within the four elements set forth in Mosaid Technologies Inc. v. Samsung Electronics Co., 348 F.Supp.2d 332 (D.N.J.2004). Under Mosaid, the Court may only give an adverse inference instruction based on spoliation if the following elements are satisfied:

(1) The evidence in question must be within the party's control;

(2) It must appear that there has been actual suppression or withholding of the evidence;

(3) The evidence destroyed or withheld was relevant to claims or defenses; and

(4) It was reasonably foreseeable that the evidence would later be discoverable.

348 F.Supp.2d at 336.”

“Thus, given the F.B.I.'s analogous preservation duty under Vella and Ammar and the failure of the Government to preserve relevant data in the midst of an ongoing investigation specifically aimed at prosecution, and thus where litigation was reasonably anticipated, the Government had a duty to preserve the Jencks material contained in the text messages.”

“At the close of evidence, the Court will issue the following charge to the jury:

During the course of this trial you have heard evidence by way of stipulation and testimony that during the Government's investigation of Defendants, the cooperating witness, Solomon Dwek, exchanged numerous text messages with F.B.I. agents supervising the investigation. The Government was obligated to preserve all of these text messages, but they were either deleted by the agents themselves or not preserved by the Government. Specifically, although some text messages were in fact preserved, the Government failed to preserve other text messages, which pertained to Agent Russ and Agent McCarthy, from two key time periods: March 1 through March 16, 2009 and the entire month of July 2009. You may infer from the Government's failure to preserve these messages, or the fact that they were deleted by agents, that the missing text messages were relevant to this case and that they were favorable to both Defendant Suarez and Defendant Tabbachino. You are not required to make this inference, however, and you must consider any rebuttal evidence that has been offered by the Government with regard to this issue. Whether you ultimately choose to make the inference is your decision as the finder of fact.”


Destruction of Evidence | Jury Instruction | Spoliation

Cities

3d DCA Watch -- Continuously Opining On Matters Not Before Us Since 1957!

Hear ye Hear ye, the 3d DCA is festooned this day with officially sanctioned holiday cheer, dispensing PCAs to all the good little boy and girl litigants, and indubitably (real word used last week by Judge Shepherd!) sharing the peaceful joys of the season.

It's true the holiday party got a little out of hand, what with the eggnog-spiked swilled coffee, the well-placed mistletoe hanging from Judge [ed. -- name deleted] or possibly his chambers, the "guess what's under my robe" game that quickly went awry, and of course the traditional gathering 'round the bunker fire to hear a spirited reading of the most gruesome cautionary Heinrich Hoffman fairy tales -- in their original German.

Still, that's what I call an old-fashioned 3d DCA Christmas!

Onward....

Crombie v. Williams:

This is an appeal of a denial of a petition for a mother to relocate to Jacksonville with her minor child.  In the process of reversing Chief Judge Brown below, the 3d also remanded with instructions to consider the mother's pending petition for child support.

This leads Judge Shepherd, in a concurrence, to take issue:

I am not unmindful of the several good reasons why Crombie wishes to move to Jacksonville. I write only to remark that we tread on dangerous ground when we opine on matters not before us, and express my belief it is as likely as not in this case that Crombie has been, at least to some extent, the author of her own undoing.

Hey, I was with Judge S through the "we tread on dangerous grounds when we opine on matters not before us" but correct me if I'm wrong, isn't the rest of the sentence -- "my belief it is as likely as not in this case that Crombie has been, at least to some extent, the author of her own undoing" -- opining on matters not before us?

Or maybe it's the eggnog.

Bay Park v. Triple M. Roofing:

The 3d sends the appellee a holiday card:

Finally, because the motion filed below represents the quintessential example of a frivolous motion rendering the time spent in the prosecution of this appeal equally wasteful, we grant appellant’s motion for costs pursuant to Florida Rule of Appellate Procedure 9.400(a). As to attorney’s fees pursuant to rule 9.400(b), the Florida Supreme Court has stated that the language of rule 9.400(b) requires that “a party seeking attorney’s fees in an appellate court must provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court's order in support of a motion for attorney's fees for services rendered in an appellate court.” United Servs. Auto. Ass'n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000). Accordingly, we deny appellant’s motion for attorney’s fees filed prior to the reply brief. At the same time, the Court on its own motion orders the appellees, Triple M. Roofing and IRT-Arcon, Inc., shall show cause within ten (10) days as to why this Court should not impose sanctions, including attorney’s fees, against the appellees and their counsel pursuant to section 57.105, Florida Statutes (2010), and Rule 9.410 of the Florida Rules of Appellate Procedure.

Oh, also:  Merry Christmas to all, and to all a good night!!

Florida Cyber Forensics | Computer Investigations

Florida Cyber Forensics Attorney, Lawyer W.F. "Casey" Ebsary, Jr. handles civil and criminal and cases in Federal and State Courts.  What is Cyberforensics? Cyberforensics is the science of locating and securing digital evidence within computer networks. These electronic records are also used in criminal investigations and may help get to the bottom of security breaches. I am Licensed in Florida, Federal Middle District of Florida, and the 11th Federal Circuit. Call me Toll Free 1-877-793-9290 to discuss how I can help you, your family, or your business.

I am  a Board Certified Criminal Trial Lawyer with diverse civil and criminal litigation experience. My Tampa office is conveniently Located in Tampa, Florida.

1101 Channelside Drive Number 244,
Tampa, FL 33602.

Computer Investigations
Forensic Analysis
Evidence Acquisition
Forensic Imaging
Electronic Discovery

Florida Cyber Forensic Attorney Lawyer

Luther Campbell Doesn't Really Care Much For Judge Cooke.

It's true we broke news of and have been actively covering the Luke Campbell case that Richard Brodsky masterfully tried before Judge Cooke, but now Uncle Luke, a columnist at the very fine Riptide, breaks his silence over the controversy and has some harsh words for Judge Cooke:

When I finally heard about the allegations, I fought to vacate the judgment and dismiss the case.

The judge refused me, ruling there was enough evidence to send the case to trial. It didn't look good for Miami's favorite uncle. So I hired Richard Brodsky, former attorney of the Securities and Exchange Commission, to defend me. At that point, I had spent a lot of money, and knew I would have to spend a lot more.

When the trial began two weeks ago, Butler was allowed to talk about her job, child, and community service. The photographer was afforded the same opportunity. But when I was on the stand, the judge instructed my lawyer to stop asking me questions about myself. She said that information was irrelevant.

I respect some judges, but not all of them. There is always a chance you'll get one who doesn't like you, your political leanings, or your core values. I would rather face a jury of my peers, who can debate the merits of the argument and come to an unbiased conclusion. In my case, the jury saw through the judge's power play.

Me:  Be a gracious winner.  You won the case, for chrissakes!  You don't need to slam Judge Cooke for her "power play," whatever that means.  Litigants don't really hold equal power with the presiding judge in a federal case, anyways.

Also, and I'll let my buddy Brodsky weigh in on this if he's so inclined, but maybe the judge let in evidence of the plaintiff's background because it went to her damages?

Just take the "W" and move on.

BTW, I'm happy Luke spent a lot of money on Richard -- it was evidently worth every penny.

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

Magistrate Judge Brown Rules on "Out of the Blue" Peter Halmos Filing!

Pointless Notice Order

I think adding an exclamation point when citing to Local Rule 7.1(a)(1) and (3)! is a nice touch.

Ruden Still in Growth Mode!

You know how Ruden indicated to The Intrepid One a few weeks ago that it was in growth mode and looking to hire some new associates, but then turned around and fired a bunch of dedicated staffers just in time for the holidays?

Well it looks like that form of "growth" is continuing:

The West Palm Beach office of Shutts & Bowen law firm has announced an end-of year expansion, bringing five new lawyers to the team. The firm has not yet named a fifth lawyer expected to join the practice at the start of 2011.

Among the arrivals are Ruden McClosky top producers real estate lawyer Steven Parson and business litigator Eric Christu. Both join Shutts as partners.

Call me crazy, but nothing shouts GROWTH louder than losing a top producer to a direct competitor.

This is truly Sun Tzu in action.

Well played, sir!

Ah Lyle!

Continuing with our earlier story about Mr. Chow and Richman Greer attorney Lyle E. Shapiro's withdrawal from the defense of the case......



(God is it slow around here -- I'm beginning to lose my mind.  Help me out people).

Hand-Pulled Noodle Case Slowly Unraveling.

Longtime readers know we have been tracking Mr. Chow's long hand-pulled noodle-like passage through the SD FL for some time now.

There have been several substitutions in the cast of characters fondling handling this matter.

Now it appears the defendants may be running out of money; at a minimum they have run out of Richman Greer's good counsel, as that firm has recently withdrawn from the case.

Methinks all is not well in noodle-land.

Your Lazy Sunday NYT Clipping Service!

I don't want to get all Glenn Beck-y so early on a Sunday, but I wonder if there's some larger point that could be extracted from these very interesting stories in the Sunday Times:

1.  Tort reform is having a direct impact in Texas:

The tort reform that state lawmakers passed in 2003 made it more difficult for patients to win damages in any health care setting, but especially emergency rooms. It capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000.

Less well known was new language to safeguard under-the-gun emergency room doctors from civil damages unless it could be proved that they acted with “willful and wanton” negligence — that they not only put the patient in extreme risk but knew they were doing it.

Malpractice lawyers say this is a near-impossible threshold to meet. “You’d have to be a Nazi death camp guard to meet this standard,” said Jon Powell, a malpractice and personal injury lawyer based in San Antonio. 

 Hey, don't go there!

2.  The Roberts Court is increasingly pro-business:

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests. 

 3.  And then there's this:

When the Tea Party holds its first Conservative Constitutional Seminar next month, Justice Antonin Scalia is set to be the speaker. It was a bad idea for him to accept this invitation. He should send his regrets.

The Tea Party epitomizes the kind of organization no justice should speak to — left, right or center — in the kind of seminar that has been described in the press. It has a well-known and extreme point of view about the Constitution and about cases and issues that will be decided by the Supreme Court.

By meeting behind closed doors, as is planned, and by presiding over a seminar, implying give and take, the justice would give the impression that he was joining the throng — confirming his new moniker as the “Justice from the Tea Party.” The ideological nature of the group and the seminar would eclipse the justice’s independence and leave him looking rash and biased.

Perhaps it would leave Scalia more than just looking rash and biased?

In breaking news from 1905, I don't have much to add to the Wikileaks controversy, other than I'm generally a fan of transparency in government -- Gulf of Tonkin, Pentagon Papers, Watergate and all that.

Still, I was reminded of the possible value of the project while reading James Bradley's eye-opening The Imperial Cruise:  A Secret History of Empire and War.

Bradley, author of two fabulous WW II accounts, Flags of Our Fathers and Flyboys: A True Story of Courage (starring the very heroic first President Bush) reaches back in his latest book to understand why his father wound up fighting in the Pacific and just how the United States got embroiled in empire-building at the turn of the century in the first place.

Near the beginning of the book, there is this:

In the summer of 1905, clandestine diplomatic messages between Tokyo and Washington, D.C., pulsed through underwater cables far below the surface of the Pacific Ocean.  In a top-secret meeting with the Japanese prime minister, Taft -- at Roosevelt's direction -- brokered a confidential pact allowing Japan to expand into Korea.  It is unconstitutional for an American president to make a treaty with another nation without United States Senate approval.  And as he was negotiating secretly with the Japanese, Roosevelt was simultaneously serving as the "honest broker" in discussions between Russia and Japan, who were fighting what was up to that time history's largest war.  The combatants would sign the Portsmouth Peace Treaty in that summer of 1905, and one year later, the president would become the first American to be awarded the Nobel Peace Prize.  The Nobel Committee was never made aware of Roosevelt's secret negotiations, and the world would learn of these diplomatic cables only after Theodore Roosevelt's death.

What's past is prologue indeed.

SFL Friday -- Florida Bar Finally Has Three Way!

 Hey, don't blame me -- that's the exact headline in this Intrepid One exclusive:

Florida Bar has 3-way race for president-elect

Ok, so maybe there's a bit more to the headline, but I got a little fixated on the first part.

Boy is this blog going downhill fast.

What else?

I don't know about you, but I officially attended my 517th holiday party last night, and though I enjoyed them all I must say my friend David Markus really knows how to throw a first-class wing ding in his fancy new island oasis.

Indeed, here's a news report on the soiree, just to give you a taste of what you may have missed:

More than 2,000 guests attended the event on the man-made Palm Jumeirah island in the Persian Gulf. Robert De Niro, Janet Jackson, Denzel Washington and Lindsay Lohan were among them, while the British contingent included the Duchess of York, Sir Richard Branson, Dame Shirley Bassey, retail boss Sir Philip Green, television presenter Trinny Woodall and the singer Lily Allen.

They feasted on lobster and Middle Eastern mezze and the Veuve Clicquot champagne flowed freely.....

 Security at the party was so tight that a two-mile exclusion zone was thrown around the island.

See what I mean -- the good times are definitely back!

Have a great weekend, folks.

Law Updates for December 10, 2010

Cable, 35 FLW 705, Fla, Knock and Announce.  Exclusionary rule applies to violations of Florida's knock and announce statute.

Burke, 35 FLW 2610, 2nd DCA, Evidence was insufficient to prove that the child was physically or mentally impaired, for purposes of 827.03(1), by def's acts of twisting his arm, pressing against his knee, and holding him by the hair, cites cases.

Colbert, III, 35 FLW 2624, 4th DCA, Evidence insufficient to sustain conviction for burglary of the retail store where the def was standing in the area of store open to the public when he broke the side glass panel of the jewelry case, reached in, and grabbed several pieces of jewelry.  Fundamental error  for leaving the scene of the accident. 316.061(1) when the evidence is insufficient to establish "driven or attended" where neither owner or someone in possession of the vehicle was present when the def crashed into the parked car.

Wyrick, 35 FLW 2666, 5th DCA, Def was properly charged with third-degree felony, rather than 1st degree MM, for DWLS where the defendant had been designated as a habitual traffic offender at the time the license was revoked.  All three prior suspensions have to be for suspensions based on factors listed in 322.34(10)a 1-5.

Stelmack, 35 FLW 2672, 2nd DCA, Possession of photograph or representation that, in whole or in part, includes "sexual conduct of a child." - Error to deny JOA where the conviction was based on def's possession of several images showing faces and heads of children pasted onto images of 19 year old women lewdly exhibiting her genitals.  No sexual conduct by a child only sexual conduct in images was that of an adult.



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

Tampa Cyber Crime | Focus on Privacy

Tampa Cyber Crime Attorney and Bay News 9 continue their focus on computer and online privacy.

Christmas Comes Early -- Administrative Order 2010-151 Has Arrived!

Santa Moreno just delivered an early holiday present -- Administrative Order 2010-151.

I know I know, it's hard to stay contained -- deep breaths, people.

Now don't get too excited, you don't want to break your new toy on the very first day, but here it is kiddies:  there is now total and complete cosmic harmony between Rule 56 and the local rules with regard to the summary judgment briefing schedule!

Rejoice rejoice (we have no choice)......

Supreme Court Approves New Forms

The Florida Supreme Court issued its ruling yesterday approving a new set of family law forms, 296 pages in all, with a a few changes included.  Full text here.

Blake Edwards RIP

Sorry I'm a bit late this morning, and for this off-topic post, but I wanted to say a few words about the unevenly brilliant director Blake Edwards, who passed away Wednesday at age 88.

Macleans writer Jaime Weinman describes Edwards as the "Genius Without Quality Control" and I think that's exceedingly apt.

How can a guy so perfectly capture the angst of an upper middle-class mid-life crisis as sweetly and knowingly as Edwards did in 10, yet bomb out so badly mining the same topic a decade later with Skin Deep?

It's no surprise I'm attracted to flawed artists, and thus I'm fascinated when incredibly talented musicians, actors, writers, painters, lawyers, judges or directors flame out or misfire in a spectacularly awful way.

Blake had an ability to be both radiantly sublime and astonishingly horrible, sometimes in the same movie.

RIP old man, and thanks for the laughs.

Judge Cope's Views on Prejudgment Interest Adopted by Florida Supreme Court!

He's a schmartie, that Judge Cope (pictured above).

Back in 2009 he realized that it's pretty stupid that a trial court can't reserve on prejudgment interest, like it can on attorney's fees, and if it does the whole darn question of prejudgment interest will be waived if an appeal is taken.

So he and the 3d suggested -- very politely of course -- that maybe kinda oughta you know the Supremes should perhaps revisit the issue, and indeed, to their credit, they have:

The application of the McGurn rule has resulted in the inadvertent waiver of prejudgment interest where the trial court, often at the behest of the parties, enters a final judgment but reserves jurisdiction to award prejudgment interest. Because we conclude that the trial court should be allowed to decide the issue of prejudgment interest separately, we recede from McGurn and answer the following rephrased certified question in the affirmative:

SHOULD A TRIAL COURT BE ALLOWED TO RESERVE JURISDICTION IN A FINAL JUDGMENT TO AWARD PREJUDGMENT INTEREST?

In answering this rephrased certified question in the affirmative, our intent is to promote judicial economy and prevent unfairness to either party. We conclude that a final judgment reserving jurisdiction to award prejudgment interest is a final appealable order but that the trial court does not lose jurisdiction to determine prejudgment interest in a manner similar to that in which the trial court addresses attorneys‟ fees and costs.

Isn't it nice to see solid rationality and logic from our judiciary sometimes?