Buju Banton Trial Delayed.

I see David noted that nice article on Judge Cohn.

Lots of good stuff in there, but this part stuck out:

Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.

Cohn witnessed and was disturbed by racism against African-Americans. At an early age, he became acutely aware that his own heritage was also perceived as alien in the South.

"You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."

Hey, that's pretty much the first five chapters of Sarah Silverman's new book (except she grew up in rural New Hampshire and is way cuter than Judge Cohn -- no offense).

Meanwhile, Mr. Markus should have lots more time to prepare for trial, thanks to MD FL Judge Moody:

Banton's trial on drug charges originally was scheduled for April 19, the date Banton requested. But 11 days before the trial was set to start, U.S. District Judge James Moody moved it to June 21.

The defense objected, citing the cost of rearranging travel for witnesses and noting that Banton would be held in jail longer.

Moody overruled the objections.

I'm a civil litigator, so the concept of a "speedy trial" is not something generally in my lexicon.

But "justice delayed is justice denied" definitely rings a bell, or maybe I'm thinking of Dylan's "Tomorrow is a Long Time"?

Either way, I vividly remember Professor Stotsky repeating it over and over again....

Hulk Hogan Cocoa Pebbles Smackdown!

Did you hear Hulk Hogan has sued Post Cereal in the MD FL over a stupid Cocoa Pebbles ad?

You can read the complaint here.

The first 40 or so paragraphs have numerous interesting though irrelevant factoids about Hulk's career.

For example, did you know that in 1994 Hulk starred in his own TV series, Thunder in Paradise (co-starring the lovely Carol Alt)?

And, in 1995, Hulk appeared on TBN's Kids Against Crime!

What that level of detail has to do with whether or not Post used Hulk's likeness without permission, I have no idea.

Most importantly, the Hulkster's lawyer is West Palm Beach's own mighty mighty super smactacular IP megastar Joseph W. Bain!!

SFL Friday -- Memorial Day Edition!

So if you just must read Judge Farina's recent Chinese Drywall class certification order, I created a Scribd thingy-dingy for your eyes only, right here.

Boy Victor's a good writer!

(I kid, I kid)

Whoa -- Gary Coleman, RIP.

This may not surprise anyone, but I was more upset when we lost Dana Plato.

Alright let's move on to something pleasant, like a nice long All-American three day weekend.

I hope you have something spectacular scheduled.

My plans are fairly conventional -- I intend to commiserate with my Indian brothers, consider what exactly is wrong with Nicholas Cage, and what do I always say -- it does in fact always come back to the Germans.

BTW, there's a reason you can sleep in Monday morning, show up way late at the office for a few hours, bill 9.4 hours, and cut out by two. Try to fit that in if you can, ok?

Have a great Memorial Day weekend!

Next Time, Make Them Play the Game of Life!

It's funny how litigators argue over the most minor things.

A perennial source of unchecked petty lawyer impulses is the location and timing of depositions.

It has to be on "my turf" or -- at worst -- a "neutral location."

For some, traveling to opposing counsel's office for a deposition is akin to the French surrendering at a certain historic railway car in Compiegne.

How humiliating!

That's why MD FL Judge Presnell seems to get it:

Faced with the inability of two bickering attorneys to resolve even the most innocuous scheduling questions without his intervention, a Florida federal judge yesterday ordered the two to meet on the steps of the federal courthouse and resolve their latest quarrel by playing "one (1) game of 'rock, paper, scissors.' " (Read the ruling.)

Judge Gregory A. Presnell of Orlando ordered the unusual measure, which he characterized as "a new form of alternative dispute resolution," after the two Tampa attorneys had proven unable to agree upon where to hold a deposition, even though both of their offices are just four floors away in the very same building in Tampa. Defense attorney D. Lee Craig, of Butler Pappas Weihmuller Katz Craig, proposed holding the deposition in his office, but plaintiffs' attorney David J. Pettinato of Merlin Law Group wanted it to take place at the court reporter's office down the street.

Which is more humiliating -- "capitulating" to a juvenile power game played by opposing counsel and going to their office for a deposition, or having a federal judge order you to play "rock, paper, scissors" to resolve this inane discovery dispute?

Attorney General Internal Memo on Charging and Sentencing | May 19, 2010

Tampa Federal Criminal Defense Lawyer, Attorney W.F. ''Casey'' Ebsary has just obtained an Internal Policy Memorandum on Charging and Sentencing  that was just circulated to Assistant United States Attorneys. The text of the Memo in its entirety below:

May 19, 2010

MEMORANDUM TO ALL FEDERAL PROSECUTORS

From: Eric H Holder, Jr. Attorney General

Subject: Department Policy on Charging and Sentencing

The reasoned exercise of prosecutorial discretion is essential to the fair, effective, and evenhanded administration of the federal criminal laws. Decisions about whether to initiate charges what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing. are among the most fundamental duties of federal prosecutors. For nearly three decades the Principles of Federal Prosecution, as reflected in Title 9 of the U.S. Attorneys Manual, Chapter 27, have guided federal prosecutors in the discharge of these duties in particular and in their responsibility to seek justice in the enforcement of the federal criminal laws in general. The purpose of this memorandum is to reaffirm the guidance provided by those Principles.

Persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly. Unwarranted disparities may result from disregard for this fundamental principle. They can also result, however, from a failure to analyze carefully and distinguish the specific facts and circumstances of each particular case. Indeed, equal justice depends on individualized justice, and smart law enforcement demands it. Accordingly, decisions regarding charging, plea agreements, and advocacy at sentencing must be made on the merits of each case, taking into account an individualized assessment of the defendant’s conduct and criminal history and the circumstances relating to commission of the offense (including the impact of the crime on victims), the needs of the communities we serve, and federal resources and priorities. Prosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation.

Charging Decisions: Charging decisions should he informed by reason and by the general purposes of criminal law enforcement: punishment. public safety, deterrence, and rehabilitation. these decisions should also reflect the priorities of the Department and of each district. Charges should ordinarily be brought if there is probable cause to believe that a person has committed a federal offense and there is sufficient admissible evidence to obtain and sustain a conviction, unless “no substantial Federal interest” would be served, the person is subject to “effective prosecution” elsewhere, or there is “an adequate non-criminal alternative to prosecution” [USAM 9-27.200 et seq.].

Moreover, in accordance with long-standing principle, a federal prosecutor should ordinarily charge “the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely’ to result in a sustainable conviction” [USAM 9—27.300]. This determination, however, must always be made in the context of “an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code, and maximize the impact of Federal resources on crime” [USAM 9-27.300]. In all cases, the charges should fairly represent the defendant’s criminal conduct, and due consideration should be given to the defendant’s substantial assistance in an investigation or prosecution. As a general matter, the decision whether to seek a statutory sentencing enhancement should be guided by these same principles.

All charging decisions must he reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a prosecution memorandum that identifies the charging options supported by the evidence and the law and explains the charging decision therein. Each office shall promulgate written guidance describing its internal indictment review process.’

Plea Agreements: Plea agreements should reflect the totality of a defendant’s conduct. ‘these agreements are governed by the same fundamental principle as charging decisions: prosecutors should seek a plea to the most serious offense that is consistent with the nature of the defendant’s conduct and likely to result in a sustainable conviction, informed by an individualized assessment of the specific facts and circumstances of each particular case. Charges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant’s conduct, All plea agreements should be consistent with the Principles of Federal Prosecution and must he reviewed by a supervisory attorney. Each office shall promulgate written guidance regarding the standard elements required in its plea agreements, including the waivers of a defendant’s rights.

Advocacy at Sentencing: As the Supreme Court has recognized, Congress has identified the factors for courts to consider when imposing sentences pursuant to 18 U.S.C. §3553. Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect fur the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory

This memorandum has no impact on the guidance provided in the September 22, 2003 memorandum and elsewhere regarding “fast track” programs. tn those districts where an approved “fast-track” program has been established, charging decisions and disposition of charges must comply with the Department’s requirements for that program. nature of the guidelines, advocacy at sentencing — like charging decisions and plea agreements — must also follow from an individualized assessment of the facts and circumstances of each particular case, All prosecutorial requests for departures or variances — upward or downward — must be based upon specific and articulable factors, and require supervisory approval. Each office shall provide training for effective advocacy at sentencing.

With respect to charging decisions, plea agreements, and advocacy at sentencing, the mechanisms established for obtaining supervisory approval should he designed to ensure, as much as possible. adherence to the Principles of Federal Prosecution and the guidance provided by this memorandum, as well as district-wide consistency. Supervisory attorneys selected to review exercises of discretion should be skilled, experienced, and thoroughly familiar with Department and district-specific policies, priorities, and practices. All guidance described above must he shared with the Executive Office for U.S. Attorneys upon promulgation.

This memorandum supersedes previous Department guidance on charging and sentencing including the September 22, 2003 memorandum issued by Attorney General John Ashcroft (“Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing”), the July 2, 2004 memorandum issued by Deputy Attorney General James Comey (“Department Legal Positions and Policies in Light of Blakely v. Washington”), and the January 28, 2005 memorandum issued by Deputy Attorney General James Corney (“Department Policies and Procedures Concerning Sentencing”)

May the Road Rise to Meet You.

See you all at the Biltmore.

Your Useless and Pointless Knowledge

Let me ask you something -- what is the point of the Herald's five-minute summary, or whatever it's called -- that occupies a half page yet provides no new content of any kind?

Are there really people out there who are unable to scan a newspaper like the Herald in five minutes, without having a pointless summary that attempts to replicate what the Herald looks like on the internet?

Seriously, the paper's thin enough without having repetitive filler that serves no purpose whatsoever.

For that matter, I feel the same way about Tables of Contents and Authorities in briefs -- if your brief is 30 pages or less, and you are not in an appellate court that requires it, you are wasting everyone's time by clogging up the beginning of your document with something that no one ever looks at or refers to ever again.

Have you ever read a 25 page brief but suddenly went "where is Venetian Salami, I must find it immediately, I'm unable to simply skim the brief and find it quickly, there must be a mildly faster way -- YESSS!"

In other news, I heard Peter Valori on the radio the other day:

PETER VALORI, ATTORNEY, DAMIAN & VALORI LLP: Typically the person that you're trusting knows nothing of the fraud. They've been victimized themselves, but they just don't know it yet. So they make the perfect candidate to draw in new investors because they have no sense that what they're doing could potentially be harmful to their friend or family member.

Peter, you're a good guy and fine attorney, but come on, you definitely want to put your best face out there, know what I mean?

Judge Bailey to Foreclosure Lawyers: Wake Up and Smell the Coffee!

Transcript Miami

I believe the legal term is "a righteous arse-kicking."

(Thanks to Matt Weidner for posting).

3d DCA Watch -- Tangled Up in Blue Edition.

I don't know, I'm in a pretty sour mood this morning.

The oil keeps spilling, the idiots keep talking and/or filing things, the kids grow up, great judges pass on, Dwyane Wade testifies before Judge Adrien, tennis stars do silly things -- you see what I mean?

How 'bout this for quality lawyering:

By Davis's estimate, it took 12-15 minutes to get from the rig to the work boat, but it would take another 36-40 hours before they were to return to shore – even though there were dozens of boats in the area and Coast Guard helicopters airlifting the most severely injured to hospital.

Some of the men were openly furious, while others, like Davis, were just numb. He says they were denied access to the onboard satellite phone or radio to call their families.

When the ship finally did move, it did not head for shore directly, stopping at two more rigs to collect and drop off engineers and coast guard crew before arriving at Port Fourchon, Louisiana.

The company was ready for the men then, with portable toilets lined up at the dock for drug tests. The men were loaded on to buses, given a change of clothing and boxes of sandwiches, and taken to a hotel in Kenner, Louisiana, where finally they were reunited with their families.

Lawyers say the isolation was deliberate and that Transocean was trying to wear the men down so they would sign statements denying that they had been hurt or that they had witnessed the explosion that destroyed the rig.

"These men are told they have to sign these statements or they can't go home," said Buzbee. "I think it's pretty callous, but I'm not surprised by it."

Davis had been awake nonstop for about 50 hours by that point. He signed. Buzbee says most of the men did.

Hey, a contract's a contract.

Oh hail, let's see what the Resplendent Ones have been up to:

Flores v. Riscomp:

"Relation back" doctrine in action:

Although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint—a slip and fall on property for which Riscomp was responsible.

Nicely written, though it's all apodictic to me.

Sims v. New Falls:

Judge Shepherd gets a case of "lex loci contractus" (I hope there's a shot for that).

Judge Cope, however, thinks an exception applies, and also uses the fancy phrase "in para materia."

I think I'm glad I'm a litigator instead of a real estate lawyer.

Park Adult v. Dan Designs:

Oh crap, more Rothstein:

At the time the agreed order was entered, the tenant was represented by attorneys at the firm of Rothstein Rosenfeldt Adler (“RRA”) in Ft. Lauderdale, Florida. On Sunday November 1, federal authorities seized the law firm premises in connection with an alleged Ponzi scheme carried out by the law firm’s senior partner, Scott W. Rothstein.

Turmoil at the law firm ensued. According to the attorneys, the firm no longer had an ability to issue trust account checks. It was therefore necessary for the tenant to obtain cashier’s checks to deposit in the court registry. On Monday November 2, the tenant obtained two official checks issued by Citibank, each in the amount of $21,400, for a total of $42,800. On November 3, the tenant provided these checks to counsel. Counsel arranged for one of the RRA law firm’s in-house couriers to deliver the checks to the registry of the court inMiami. The same day counsel served a notice of payment to the court registry and attached copies of the Citibank checks.

However, during the work day on November 3, the law firm employees were informed that they would no longer be paid. Many employees, including the one or ones responsible for delivering these checks, walked off the job. Accordingly the November 3 deadline passed without the checks being deposited in the registry of the court.

On November 4, counsel learned of the nondelivery of the checks. Counsel personally took the checks to the court registry in Miami on November 4 but the clerk refused to accept the checks because they were tendered a day late.

Judge Gersten says the "trial court may not consider the reasons why the deposit was not made," though he offers some "rachmones" to the displaced, totally-screwed tenant.

That's nice, says Judge Cope, but the tenant might have preferred a little justice with his schmaltz.

Brad, if you're listening, take this one up.

11th Circuit Into This Whole "Jurisdiction" Thing.

halmos11thcircuit

My favorite case (ok, I take that back -- I have several) just had a fun 11th Circuit development.

Who knew?

Turns out you can't just appeal the dismissal of your lawsuit when you have been given leave to amend and in fact have filed an amended pleading:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction. The district court's January 29, 2010, order, dismissing Peter Halmos's second amended complaint is neither final nor immediately appealable because it permitted him to file a third amended complaint, which is currently pending before the district court. See JUST ABOUT EVERY CASE I CAN THINK OF DEALING WITH APPEALS OF NON FINAL ORDERS.

(I'm paraphrasing that last part.)

I do love this case.

Judge Davis RIP

David reports with sadness the death of Judge Edward B. Davis. Rump has additional thoughts here.

I echo what's been written.

I knew Judge Davis pretty well back when I was a lowly clerk kicking around the federal courthouse, and worked with him some in private practice as well.

He was everything that has been described, and more.

Although the word became a partisan weapon, I want to stress that the Judge had tremendous empathy -- towards clerks, lawyers, litigants, colleagues and pretty much everyone he met.

He made people feel comfortable, he related well to just about anyone, he was self-deprecating, modest, warm, funny as hail, filled with humility and good will. He understood how to talk to someone, he was just, fair, honest, smart as a whip and a straight shooter. His word was his bond.

He will be missed.

Loan Aid Leaves Some Worse Off

In a May 18, 2010, article the Wall Street Journal reports how many homeowners who participated in HAMP “Obama Plan” loan modifications are worse off after the experience. The story reports that one in four participants in the program gets dropped.
Back on January 24, 2010 in the blog post titled “Is HAMP one big Scam?” this blog explained that while HAMP was conceived by the government with good intentions many banks are tricking homeowners into making additional payments under HAMP trial plans and then denying permanent modifications.

The Wall Street Journal told the story of how Mia Parry bought a home in Phoenix in 2005 for $535,000 which would sell for around $250,000. Parry first requested a modification from a unit of Citigroup Inc., the servicer of her two mortgage loans, in June 2008.

Ms. Parry's application was turned down in late 2008, but President Obama's announcement of HAMP in February 2009 rekindled her hopes. Ms. Parry decided to keep making payments on her loans because she expected to qualify for this new program.

According to the Journal Citigroup started Parry on a HAMP trial in June 2009, and she made three payments. Then Citigroup told her there had been a mistake and she would need to go through another three-month trial.

At the end of that second trial, Ms. Parry said, Citigroup told her the investor that owned her first mortgage wasn't participating in HAMP, so she couldn't get a modification under that plan. During her trial period, Citigroup charged her more than $1,300 of "late charges" and "delinquency expenses," she said.”

Clearly, Citi knew or should have known whether the “investor’ was participating in HAMP. It is just too convenient that Ms. Parry apparently does not know who the “investor” is and Citi apparently is telling her the investor apparently without naming names so that she could confirm whether the statement in accurate. An argument can be made that since Citi participates in HAMP and received billions of TARP money and emergency aid from the government to keep it afloat, Citi must participate in HAMP on those loans it services.

Any homeowner who contemplates starting a trial modification should get the first and last name of the person they communicate with and confirm their oral communications by E-mail. If a homeowner is going to make three trial payments the bank should agree that if all three payments are made on a timely basis then the modification will be made permanent. If the bank makes an oral promise to this effect the homeowner should confirm the promise by E-mail or fax. If the bank will not make this promise the homeowner should refuse to send the trial payment and obtain legal representation.

The foreclosure attorneys in the Dade, Broward, and Brevard offices of Shuster & Saben are defending many homeowners in foreclosure where lenders are servicers broke their promises of giving permanent loan modification. We have also sued banks that promised modifications, took our client's money, and broke their promises. If you have a HAMP horror story we want to hear about it. If you are a Florida homeowner that is not in a county we serve we (currently we defend foreclosures in Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Brevard, Orange, Collier and Lee Counties) we will be happy to refer you to a talented attorney in your area.

"Your Honor, I Object!"

Court: Ms. Lohan, do you recognize the severity of the charges?

LL: $h@t, I left the coke in the other bag!

Court: Ms Lohan, did you hear me? I am speaking to you.

LL: Sorry, I have to text my dealer.

Court: Your what?

LL: Do they serve Grey Goose in prison?

[long disoriented pause, lays head on table, awakens suddenly]

LL: Hey, look at me, I'm a lawyer!!

Stop Bullyragging My Heart Around.

Anyone remember that Ebay suit filed by Miami Beach lawyer Elliot Miller?

Turns out the defendant appears to have some pro bono representation by a Brevard lawyer who uses the word "bullyragging" when speaking to the press:

Cape Canaveral attorney Tony Hernandez said he recently filed a motion on behalf of Steadman, seeking to have the case dismissed.

Hernandez -- an avid eBayer himself -- said he decided to offer his services because he felt Steadman deserved "his day in court."

"I didn't like the fact that he was being bullyragged into this lawsuit," Hernandez said.

We say let's check the dictionary:

Verb

1.

bullyrag - be bossy towards; "Her big brother always bullied her when she was young" ballyrag, boss around, browbeat, bully, hector, push around, strong-arm intimidate - make timid or fearful; "Her boss intimidates her" domineer, tyrannise, tyrannize - rule or exercise power over (somebody) in a cruel and autocratic manner; "her husband and mother-in-law tyrannize her"

Hey, it totally fits!

I like this guy.

Glenn Garvin Makes Crude Sexual Joke About Lawyers That Also Involves Killing Them!

I know lawyer jokes are pretty hip.

In fact, they're probably about as cutting-edge as cracking wise about airplane food.

That, plus the traffic in L.A.

Anyway, I was intrigued by Herald Executive Editor Anders Gyllenhaal's column today on the Pulitzers, in which he notes the "depth, precision and good writing that is part of the newspaper tradition."

As an editor, I'm sure Anders is proud of The Garvinator's story today on the new TV season, which includes this shining example of depth, precision, and good writing:

But even jaded lovers of lawyer jokes (Q: How can you tell if a lawyer is well hung? A: You can't get a finger between the rope and his neck!) will be glad to know that there's adequate legal representation available if all the homidical women on Spanish-language TV need to cross over.

Ha ha, oh boy that's a knee-slapper!

Putting aside that the joke is apropos of nothing, what's pathetic is that this lame, inappropriate effort at "humor" is contained in an article that otherwise decries TV's "slouching towards Gomorrah" slide into crude, vulgar, dumbed-down and offensive programming.

(Not that that would ever happen to our hometown newspaper, of course.)

SFL Friday -- Demon Seed and Milkshakes Edition

Hi kids, it's too nice outside to sit in front of a computer, so I'm bringing all my drafts, cases, discovery requests -- oh hail I'm packing gin, a waterproof camera, various windsurfing accessories and Ravel, who am I kidding?

So the eggheads have finally created synthetic life:

The genome pioneer J. Craig Venter has taken another step in his quest to create synthetic life, by synthesizing an entire bacterial genome and using it to take over a cell.

Dr. Venter calls the result a “synthetic cell” and is presenting the research as a landmark achievement that will open the way to creating useful microbes from scratch to make products like vaccines and biofuels. At a press conference Thursday, Dr. Venter described the converted cell as “the first self-replicating species we’ve had on the planet whose parent is a computer.”

“This is a philosophical advance as much as a technical advance,” he said, suggesting that the “synthetic cell” raised new questions about the nature of life.

Since my reference points are almost entirely TV, film, book, or music-related, this of course means that the synthetic being immediately wants to canoodle with Julie Christie.

Speaking of horrific half-human/half-synthetic entities, none other than Aubrey O'Day will be shaking her milk for charity at Mansion tonight.

But can that compete with a bunch of well-meaning out-of-shape lawyers fixing up a run-down school?

Actually, I'll take the out-of-shape lawyers.

Whatever you do, do something meaningful and other-directed this weekend.

And of course, always try to ignore the stats, consider taking a vacation at home, and remember, being a mommy is a beautiful thing.

Have a great weekend, folks!

Suge Knight Late To Own Deposition, Gets Sanctioned!

I can only imagine what it must be like for Marc Brumer to represent Suge Knight.

Suge's a busy man -- for instance he was just arrested again.

All that drama takes time!

Perhaps that's why he was 3.25 hours late for his own deposition:

ORDERED AND ADJUDGED that the plaintiff shall reimburse the defendants $1300.00 in attorneys fees and costs associated with the plaintiff arriving 3.25 hours late for his deposition. “Rule 37(b)(2) provides a range of sanctions that a district court may impose upon parties and their attorneys for failure to comply with the court’s discovery orders.” Stuart I. Levin & Associates v. Ronald Rogers, 156 F.3d 1135, 1140 (11th Cir. 1998). Federal Rule of Civil Procedure 37(b)(2) provides in part that: “the Court should require the party failing to obey . . . to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.”

The plaintiff has failed to show substantial justification for failing to attend his deposition at the required time in April 2010. The undersigned awards the defendants 3.25 hours at a rate of $165.00 per hour for the time spent by attorney Adam Josephs, 3.25 hours at a rate of $200.00 per hour for the time spent by attorney Jay Green, and 3.00 hours at a rate of $40.00 per hour for the videographer, for a total award of $1300.001.

If I were Magistrate Judge O'Sullivan, I would have given Marc a few hundred too, just for having to sit there in excruciating agony while he's waiting for his client to show.

Law Updates for May 14, 2010

J.M., 35 FLW 1103, 3RD DCA, Juveniles - Statement of juvenile in which he revealed his date of birth that was relevant to the case was properly admitted even if given pre-Miranda. Basic biographical information, and Miranda does not apply to a question to obtain basic booking information

Harris, 35 FLW 1007, 1st DCA, Other crimes evidence. Prosecution witness' non-responsive statement during cross that he changed his earlier statement to wit the def was not involved in the fraud as there was a warrant out for the def for a different offense, and witness did not believe the def's testimony in the matter was improper and irrelevant - harmful error.



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

Warren Sapp, Roy Black, and Other Masters of the Universe.

sapppetition

I'm pretty sure I saw this in a movie once:

This morning, Mr. Goodman was arrested at the Four Seasons Hotel in Miami and charged with DUI manslaughter and vehicular homicide. (Click here to see the police photo.) He was released on $100,000 bail.

A quick review: Mr. Goodman was returning from a late night at his polo club when he crashed his Bentley into 23-year-old Scott Wilson’s Hyundai. Mr. Wilson’s car tumbled into a canal, where it laid upside down and caused Mr. Wilson to drown, police say. Mr. Goodman’s blood alcohol level was later tested and found to be at .177, well over the .08 legal limit.

Police say Mr. Goodman waited nearly an hour to call police and didn’t make an attempt to help Wilson.

Mr. Goodman’s attorney, the famed Miami defense lawyer Roy Black, said in a statement that “Mr. Goodman intends to vigorously defend himself against the criminal charges while continuing to do all within his power to minimize any further suffering by the Wilson family. After thoroughly reviewing the facts available to us, the defense team believes that the arrest warrant and charges reveal only a part of the whole story. Mr. Goodman is entitled to his day in court. We ask that the public and the media not rush to judgment until all of the facts are known.”

Hmm, the Four Seasons, "polo magnate," a Bentley, car crash, waiting an hour, is this that Tom Wolfe book with Tom Hanks?

Meanwhile, Warren Sapp is somehow involved in the Rothstein mess.

Let me get on CM/ECF and see who his lawyer is......hey, it's Gary Farmer.....who used to work at RRA!

And he's doing it for, well, I'll let him explain it:

Petitioner is represented in the instant forfeiture proceeding by the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. ("Farmer Jaffe Weissing"). SFL note -- too long, fellas!! Farmer Jaffe Weissing have undertaken the representation of Petitioner, and more than forty (40) others similarly situation individuals (the "Farmer Jaffe Weissing Petitioners"), and has agreed not to take any portion of the subject trust fund for payment of the attorneys' fees incurred in this action. Rather, Farmer Jaffe Weissing will seek only a court awarded fee over and above the amounts owed to the Petitioners. Petitioners' counsel's interest in this proceeding is to obtain justice for the Petitioners, who seek the return of their settlement monies which were held in IOTA legal service trust accounts for their benefit by their former attorneys, Rothstein Rosenfeldt Adler, P.A. (RRA).

Judge Cohn has set a status hearing on Sapp's petition for May 28.

Justice Lewis on 3d DCA Opinion: Litigants Beware!

We previously covered this case here, but the FSC has suddenly reversed itself and decided not to take on the issue of extensions of statutes of limitations based on administrative bad weather orders.

Here's the per curiam opinion:

We initially accepted jurisdiction to review the decision of the Third District Court of Appeal in Ramirez v. McCravy, 4 So. 3d 692 (Fla. 3d DCA 2009), based on express and direct conflict with Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000), and Sullivan v. State, 913 So. 2d 762 (Fla. 5th DCA 2005). After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

Seems simple, right?

Not according to Justice Lewis, who filed this mild dissent:

The decision below and the principle of law specifically announced as the basis for the conclusion is in express and direct conflict with every Florida decision that has previously upheld any extension of a statutory time period based upon procedural rules or considerations, such as rules which extend any statutory time deadline due to the status of governmental facilities being closed for weekends, holidays, disasters and otherwise, along with the myriad of other practical circumstances and situations that the judicial branch has addressed for as long as the judicial system has existed. There is also misapplication of law conflict with Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), and express and direct conflict with every other decision in Florida that has ever explained the concept of “tolling,” all of which are contrary to the decision below.

Other than that, the opinion's just fine!

Justice Lewis concludes with a bit of rhetorical flourish:

Litigants beware! The principles of law announced in the decision below have far reaching consequences. The principle of law announced by the court below may or may not be correct but it must be resolved to avoid the destabilizing effect of its application. Accordingly, I dissent because the destabilizing effect of the principles announced should be addressed.

Sheesh!

Let's try to figure out exactly what Justice Lewis is so upset about.

Mostly he's upset because the 3d DCA unequivocally stated the reason for the ruling is that the Florida Supreme Court lacks the Constitutional authority to alter statutory time periods.

Justice Pariente, in her concurrence, talks a lot about what Justice Lewis calls an "unstated subjective intent" -- that the extensions shouldn't be available to a litigant who does not allege that the bad weather impacted his or her ability to otherwise file within the statutory period.

Here is Justice Pariente:

The purpose of the administrative orders would not be served if a litigant could tack on days to a statute of limitations where the last weather emergency occurred six months before the expiration and the litigant does not allege that the delay in filing was based on any of the weather emergencies.

Justice Lewis says this is an after-the-fact justification contrary to the actual stated basis for the 3d DCA's ruling:

Justice Pariente goes to great effort to assert an unstated subjective intent in administrative orders contrary to the specifically stated principle of law articulated very clearly by the Third District as the reason and basis for its conclusion. Justice Pariente articulates an intent never voiced by the court below. When a court announces its decision and specifically states “We reach this conclusion because” followed by a clearly articulated principle of law, I read the words of the opinion rather than suggesting an unstated subjective intent.

This is funny, because I also questioned this aspect of the 3d DCA's ruling, and also wondered why a litigant would need to allege specific reliance on the extra emergency days.

But what do I know?

Miami: It's All About The Fruit.

Is it Friday yet?

South Florida celebrity divorce attorney Raymond Rafool, who boasts clients such as Hulk Hogan's wife Linda, said Miami can be one seductive mistress.

The Miami scene -- the unique nightlife, culture and the scantily clad hotties -- can offer relationship-ending temptations that aren't as easily available in other parts of the country, he said.

"If you are from an area that doesn't have a nightlife, the beautiful people, the spending that's all around you and everything else, I think that's where you have the difference," said Rafool, senior attorney and managing member of Raymond J. Rafool, LLC. "When you're in a city like Miami, you have the opportunities that don't exist in other areas of the U.S."

He added, "It is sort of like in Miami there is much more fruit to pick than other areas."

I'm not sure The Hulkster's wife is technically a celebrity, but whatever.

Shorter Victor Diaz: Can you believe companies sometimes lie?

What else -- oh yeah, Broweird.

Got a hearing this morning, wish me luck!

Three Rules For Defeating the Bank's Motion For Summary Judgment in Foreclosure Cases

One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 days. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge makes an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

Some judges do not like presiding over foreclosure cases. Some judges feel that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press that the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an appellate order saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps he did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

The foreclosure lawyers in the Miami, Fort Lauderdale, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.

3d DCA Watch -- Ca-Ca-Ca-Ca-Ca-Catch the Wave!

At what point do all the opinions look the same?

xxxxx v. State

xxxxx v. United

zzzzz v. zzzzzz

Let me be honest -- I'd like to see some graphics and flash content on the 3d DCA website. You know, snazz it up a bit.

Make it something the "kids" can relate to.

How 'bout maybe have the Chief Judge appear as a large disembodied talking head, Max Headroom-style, as he amusingly walks viewers through the intricacies of filing a PCA?

Or a whack-a-mole type app, where you can bang the gavel on appellate counsel as they scurry around the courtroom, using their files as partial shields?

I don't know, these are just ideas, feel free to share some of your own.

On to the opinions:

Welde v. Top Video:

Who says appellate opinions are boring?

On remand, if the existing record is sufficiently clear for the trial court to make the factual findings, the court may do so. If, on the other hand, the record is not sufficiently clear, then the record must be reopened for presentation of further evidence.

If, on the the third hand, the record has been lost and/or no one gives a darn anymore, the court can just ignore the whole thing.

Rodriguez v. Recovery Performance:

Aah, 6th amended complaint, not so much.

Exile v. Miami-Dade:

Hey, Judge Escharte wrote an "excellent" opinion!

(According to Judge Schwartz).

See what I mean?

So-so-so-so-so-sorry, kids, that's all I got.

Open Letter To Bill McCollum (This Time With Esperanto!)

In the spirit of goodwill and universal peace and understanding, I offer this polite correspondence to our Attorney General -- with a related note to our beloved 3d DCA entirely in Esperanto, the language of love (and Star Trek):

Dear Bill:

You're a schmuck.

It's bad enough you pushed the State to waste $120,000 on an "expert" whose prior testimony an Arkansas judge found "worthless."

Then Judge Lederman found his testimony unreliable and "not consistent with the science."

Then you take an appeal.

Then he allegedly engages in "long stroke" luggage management techniques with a Rentboy.

Then you don't act like a grown-up lawyer and withdraw any reliance upon his testimony in your pending appeal before the 3d DCA:

To Professor Gillers, Mr. McCollum is now obligated both as a lawyer and as a public official to alert the appellate court. “It is not enough for the attorney general simply to refrain from relying on the testimony in his brief and argument,” he said. “He has an affirmative duty to speak up.”

Ms. Wiggins, the spokeswoman for Mr. McCollum, said she could not comment further on pending litigation.

Could not comment -- that's it? Could you imagine a private litigant getting away with that?

Ok, here's the part in Esperanto to the 3d DCA:

Ĉu kosta *bunkeriza kaf-*swil vestitoj de la pompaj vestaĵoj vi estas aŭskultanta?

Live long and prosper, my meshpucha.

Glenn Garvin Still Lives In Tuckahoe.

It's no secret that Glenn Garvin's entire worldview was shaped by the culture wars of the 60s as filtered through 70s era sitcoms -- wars in which somehow Garvin failed to get sufficiently high or sufficiently laid.

In today's column, Garvin fearmongers over a current fixation of the far right -- Obama's continuing plan to turn America into socialized Europe, this time by way of the VAT.

Forget that taxes have gone down, or that Obama has not ruled anything in or out, the important thing to know is that NIXON AT ONE POINT CONSIDERED IT!

Umm, ok, good way to deal with highly complex national finance policy.

Let's see, Nixon also opened relations with China, signed the National Environmental Policy Act of 1969 (and the Clean Water Act), created the EPA, called Jews "cheap kikes" and tried to deport John Lennon.

So he was on a roll there until the last two, I think.

Is it the least bit persuasive to talk about what Nixon once thought of doing?

The pros and cons of a VAT, and how it would possibly be structured and implemented, are a discussion for another day -- like when there's a slight possibility it might actually happen.

But why let that get in the way of a good old-fashioned Glenn Garvin fear session?

Remember how Garvin shouted to the rafters about Obama personally bringing back another 70s' era relic, the Fairness Doctrine?

Oh yeah:

President Obama opposes any move to bring back the so-called Fairness Doctrine, a spokesman told FOXNews.com Wednesday.

The statement is the first definitive stance the administration has taken since an aide told an industry publication last summer that Obama opposes the doctrine -- a long-abolished policy that would require broadcasters to provide opposing viewpoints on controversial issues.

"As the president stated during the campaign, he does not believe the Fairness Doctrine should be reinstated," White House spokesman Ben LaBolt told FOXNews.com.

So much for Garvin's crystal ball.

Holy hail now he's got me thinking about Adrienne Barbeau again.

And Mrs. Naugatuck.

Together.

With Glenn Garvin.

D'oh!

(Ok, now it's officially getting weird.)

Relax, Facebook Just Wants to "Harvest" Your Data!

But first they want to tenderize it some, like those friendly farmers from Motel Hell:

Alana Joy, who started the Facebookprotest.com site organizing the June 6 event, said she is more upset about the way Facebook has made changes, rather than what's changed.

``Just because you post something online doesn't mean it's for the whole wide world to see,'' said Joy, a Los Angeles-based marketing strategist who doesn't use her full legal name online or professionally because of privacy issues.

Her biggest gripe?

``They also didn't explain them in changes that my 18-year-old sister and my grandmother can understand,'' Joy said.

Lior Leser, an Internet lawyer who actually writes similar privacy policies, agreed with Joy.

``The problem is they never really present what's happening,'' said Leser, who is with the Miami Beach firm Leser Hunter Taubman Taubman. ``How about, `Hey, we're a free service, but this is how we use your information to sell ads -- that's how we make money.' ''

I printed out Facebook's privacy policy: it's five, single-space pages of type that's at least half the size of these newspaper characters.

That's it? Just five single-spaced pages?

Any references buried in there to the true size of the "Olympic" pool or that your condo is not on the bay but actually in Overtown?

If so, you're screwed -- 'cause that's just how people in the real world deal with contracts.

If you're interested, ReclaimPrivacy.org will run a scan of your Facebook account and tell you how you had no clue you had agreed to all those settings (and you're a lawyer!)

Finally, to Internet lawyer Lior Leser -- I had no idea such a practice area exists btw -- will you be my friend?

The Perils of Filing "Emergency" Discovery Motions.

I don't know Cathrin Lorentz but she's apparently a model who has sued Sunshine Health Products over the use of her image to promote a teeth whitening product called "Sunshine Smiles." (The complaint is here).

Well seems her attorney filed an "emergency" motion for protective order to prevent Ms. Lorentz, who resides in London, from having to appear in Miami for her continued deposition.

Magistrate Judge Torres entered one of those fancy docket/text/order thingies that very same day (probably using a judicial iPhone app):

ORDER denying 102 "Emergency" Motion for Protective Order. A discovery related matter is almost never an emergency under the Court's Rules. This motion is no exception, as the Federal and Local Court Rules provide a party with more than sufficient guidance in these situations. Nevertheless, upon review of the motion on an emergency basis, the Court will for the most part Deny it. The two hour deposition was necessitated by a discovery violation on the Plaintiff's part. Thus, Plaintiff has little standing to complain that Defendant should not be entitled to take the deposition in the manner in which it sees fit, consistent with the Rules. Nevertheless, to the extent the Plaintiff is claiming that she has not gotten sufficient notice of the deposition to make it financially reasonable for her to travel to the United States for that purpose, the Court will grant temporary relief by allowing her to provide three proposed dates in May or June (even if necessary after the discovery cutoff date) in which it will be reasonable for her to travel to Florida for the deposition, absent an agreement of the parties otherwise. Defendant shall take the deposition on one of those three proposed dates. The Court would note for the Defendant's benefit that Defendant appears to be quite optimistic as to the amount of discovery that will be required prior to the discovery cutoff date in the case, which optimism would be more realistic with accommodation and agreement with Plaintiff, which would be in Defendant's own interest. But the Court will, absent such cooperation, enforce the Rules, which of course means that the Court will not compel any discovery after the current cutoff date that will be strictly enforced except as provided in this Order.

Emergency solved!

(Who's smiling now?)

"Only in America."

Pictured above: Bob Zarco reenacts the triumphant final scene from Rocky V.


I kid I kid.

Actually he was just explaining how promoters turn boxers into "brands":

"What Don King did with Mr. Mayorga was create a brand, and what the court did today is keep another promoter from stealing that brand," said Robert Zarco, one of the attorneys.

It's been a while, but is he talking about that old boxing film with Bogart and Rod Steiger?

Meanwhile, David highlights Justice Kennedy's recent remarks on judicial "empathy":

When asked if empathy has a place in judicial rulings at the highest levels, Kennedy said absolutely. He said prison sentences in the United States are eight times longer than in other Western countries for the same crimes.

“If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?”

I can't believe we will have to endure yet another silly season so soon after the last one, where Senators and talking heads make repeated, impassioned, empty oaths of fealty to the "rule of law."

It's funny, I happen to be midway through Robert Hughes' masterful account of the founding of Australia, The Fatal Shore.

The first part of the book looks at Georgian England and prevailing, Hobbesian attitudes toward the "criminal class" -- specifically the need to kill, isolate or banish criminals, who were thought to be born that way and incapable of rehabilitation.

Hughes writes of the excessively severe Georgian criminal code and the almost fetishistic devotion to the "rule of law" (at the expense of justice or reason):

Such legislation was part of the general tendency in eighteenth-century England: the growth of the Rule of Law (as distinct from any particular statute) into a supreme ideology, a form of religion which, it has since been argued, began to replace the waning moral power of the Church of England.

. . . .

Why did the judges weep with the accused? Because both were bound -- though not, of course, in equality of pain -- to the law. This drama of immutable rules lay at the heart of the tremendous power that Law held over the English imagination. The judge simply surrendered to the imperative of the statutes, a course of action that absolved him of judicial murder, and that caused him to weep. His tears humbled him not before the men in the dock, which would have been unthinkable, but before the idea of Law itself. When the Royal Mercy intervened as it commonly did, transmuting the death penalty into exile on the other side of the world, the accused and their relatives could bless the intervening power of patronage while leaving the superior operations of Law unquestioned. The law was a disembodied entity, beyond class interest: the god in the codex. The judge was invested with its numen, as a priest was touched by sacerdotal power. But he could no more change the law than a clergyman could rewrite the Bible.

Think of this the next time you hear someone who knows better prattle on about how judges must -- in every instance -- mechanically apply the "rule of law," as if it resides in the clouds waiting to be divined.

SFL Friday -- Go Go Aqua Girl!

Well it's a bit of slow day around here, legal news wise.

If you're interested, the Florida Supreme Court ruled yesterday that they're pretty much the only ones who can determine what constitutes the unauthorized practice of law.

Then I see that Dexter Lehtinen will no longer be handling at least some major Miccosukee Tribe stuff, which will now be solely the responsibility of Sonia O'Donnell, a quality lawyer who works at my friend Frank Burt's shop.

Those who are SFL-bi-curious can find me here next week.

What else?

Actually, who cares?

I'm off to sail the seas, to sow the seeds, to put an end to need, and the politics of greed....

Before I go, be careful where you Facebook, interesting new uses for egg timers, and ummm go go aqua girl?

Have a great weekend!

"We Seemed To Float Right Through the Air"

I've had this song stuck in my head the last few days (here in a beautiful arrangement set to the classic dance scene from Picnic), and it's impossible to not feel hopeful, romantic, and wildly optimistic listening to it.

Perhaps that's why I get such a kick from this story:

When asked to predict the outcome of civil and criminal cases, lawyers are often too optimistic.

That's the result of a survey co-authored by Elizabeth Loftus, a University of California-Irvine psychologist and law professor, along with other academics, published this month in the American Psychological Association's Psychology, Public Policy & Law.

The article is titled "Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes."

“The higher the expressed level of confidence, the more likely lawyers were to fall short of their goals,” Loftus said in a UCI release about the survey. “In addition, male attorneys were found to be more overconfident than female attorneys.”

This strikes me as so empirically true.

How many times have you had to deal with a lawyer on the other side who is ridiculously overconfident of his chances of success?

Again, I recognize bluster serves a function and is part of the game, but at some point it actually enhances your cognitive decision-making process to realistically assess negative outcomes.

Oops, I'm getting all jargony again.

Remember we were discussing that magic 5000 barrels a day number?

Turns out it's probably total bullcrap:

Scientists said that the size of the spill was directly related to the amount of damage it would do in the ocean and onshore, and that calculating it accurately was important for that reason.

BP has repeatedly said that its highest priority is stopping the leak, not measuring it. “There’s just no way to measure it,” Kent Wells, a BP senior vice president, said in a recent briefing.

Yet for decades, specialists have used a technique that is almost tailor-made for the problem. With undersea gear that resembles the ultrasound machines in medical offices, they measure the flow rate from hot-water vents on the ocean floor. Scientists said that such equipment could be tuned to allow for accurate measurement of oil and gas flowing from the well.

Richard Camilli and Andy Bowen, of the Woods Hole Oceanographic Institution in Massachusetts, who have routinely made such measurements, spoke extensively to BP last week, Mr. Bowen said. They were poised to fly to the gulf to conduct volume measurements.

But they were contacted late in the week and told not to come, at around the time BP decided to lower a large metal container to try to capture the leak. That maneuver failed. They have not been invited again.

Note to BP lawyers assisting in or facilitating this strategy: F^&K YOU.

Oh hail.

It must have been moonglow, way up in the blue
It must have been moonglow that led me straight to you
I still hear you sayin', "Dear one, hold me fast"
And I keep on prayin', "Oh Lord, please let this last"