Tampa Attorney | Spoliation of Computer Evidence | USB Thumb Drive | External Hard Drive

Spoliation of Evidence

Tampa Criminal Defense expert has just studied a recent Circuit Court Order in Florida where a Judge ruled a jury can learn of destruction of evidence on a USB Thumb drive and external hard drive in a civil case. Under the Florida Rules of Evidence (FRE), spoliation of evidence can result in sanctions. Spoliation is a legal term for destruction of evidence.

The Florida Circuit Court Judge noted that a party had intentionally deleted files on a USB Thumb Drive and external hard drive.  Apparently the USB Thumb Drive had been thrown away. The Court also observed that the materials on the drives were subject to the Discovery Rules under a Court Order. Prejudice can occur when efforts of a litigant are obstructed. The court found that while data had been destroyed, the opposing party could still present evidence to support its allegations. The Jury in the case will be given an "adverse inference" instruction that would tell the jury to assume that the deleted data on the USB Thumb Drive would have hurt the offending party's case. The Court noted, "The content of the files deleted from the Sheriff's laptop, the external hard drive and the Armor computer is not known. Plaintiff's expert may be able to reconstruct some or all of these files, but only at excessive cost to plaintiff. The thumb drive, of course, has been lost altogether."

Excerpted Text of Court's Ruling:

"1. The motion to impose sanctions for spoliation of evidence is granted.

2. At trial, the jury will be instructed that data deleted from the Sheriff's Office laptop, the Armor computer and the external hard drive, and data on the discarded thumb drive, contained information detrimental to defendants.

3. Plaintiff's expert shall not be required to perform further analysis in an effort to retrieve deleted files or data.

4. Plaintiff is entitled to recover reasonable attorney fees incurred in connection with the prosecution of the instant motion."

Source: FLW Supp 1709PRIS

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Lawyer in Tampa, Florida

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How All Clients Should Dress For Court.

I don't know about you, but I always impress upon my clients that court hearings are serious business, that you should always try to look neat, professional, and respectful, and that appearances matter.

Alleged Fort Lauderdale "Foreclosure Mill" Slammed By Sarasota Judge

Personally, I'd like to see more orders like this from our local judiciary, but maybe the west coast winds will blow east:

Circuit Judge Janette Dunnigan scolded five lawyers from the Smith, Hiatt and Diaz firm in connection with a Manatee County foreclosure case filed in 2007. The firm is one of several "foreclosure mills" filing thousands of foreclosure cases monthly.

The firm's attorneys filed what amounted to "sham" paperwork setting seven hearings over two years, and then failed to appear in court or tell the judge or other parties when they were canceled.

The case is still unresolved.

The behavior is willful, deliberate and flagrant and violates oaths of professional practice for lawyers, Dunnigan said. The firm also routinely does not comply with local court rules about how foreclosure cases should be handled, Dunnigan ruled.

"It is disrespectful and inconsiderate of the court's time and impedes judicial administration," Dunnigan said.

I'm not following -- what exactly is the problem?

Let's take a closer look at the Smith, Hiatt & Diaz law firm (aka "SHD").

First off, they have separate "homeowner" and "client" entrances on their website.

Hmmm, let's go with "client":

In order to maximize the service we provide our clients, the Firm is always focused on technology. We utilize computerized case management programs that enable the Firm to be pro-active in facilitating the communication of case status information. We utilize all industry recognized web-based referral and communication systems. Our Web Site facilitates borrowers who are interested in loss mitigation.

I don't understand what any of that means, but maybe it's time for a software upgrade?

Now let's try "homeowner":

The goal of this web site is to provide Homeowners with important information concerning potential resolution of disputes related to their mortgage. Various lenders have programs that assist Homeowners with resolution of defaulted loans. These lenders may be able to resolve a default and any dispute without continued court intervention.

 Ok, am I missing something here?

Bankruptcy Judge Olson Denies Incendiary Motion To Recuse.

orderdenyingrecusal

Although many tipsters (thank you!) alerted me to this motion to recuse filed before Fort Lauderdale Bankruptcy Judge John K. Olson last week, I was reluctant to blog about it.

To be honest, I still am.

In any event, Judge Olson has now forcefully (in my view, persuasively) addressed the motion on the record.

He held an expedited hearing on the motion Thursday afternoon, and just entered his order denying the recusal request.

The order has a pretty good summary of the alleged grounds, which I won't repeat here, but Judge Olson really gets going when he discusses the type of "disclosure" the movants appear to be requiring of him:

The movants would have me engage in pointless record disclosure at the beginning of every matter in which Ruden McClosky represents a party:

For the record, I am getting married to an attorney who works for the Plaintiff’s firm. He is not involved in this case and recusal is therefore not required under 28 U.S.C. § 455(b)(5)(ii). He is a salaried attorney who has no interest which could be affected such that recusal is not required under 28 U.S.C. § 455(b)(4) or (b)(5)(iii).  This record disclosure is required pursuant to § 455(a) and (e) to avoid any appearance of impropriety, but you are not entitled to withhold waiver because my fiancé’s employment is an insufficient basis for recusal under the case law applying § 455. Please confer outside of my presence and notify my law clerk when you are prepared to give your mandatory record waiver.

And this is no joke. This is quite literally what the movants are asking for. Their misunderstanding of § 455 was painfully betrayed at the August 26th hearing when movants’ counsel forcefully argued that I should recuse myself from any matter in which Ruden McClosky represents a  party. Whether movants’ counsel did not adequately research the case law on this subject, or simply did not digest it, I do not know. But fiery, impassioned oral argument in the face of a glass mountain of precedent, with no acknowledgment of that glass mountain, and no hint at a good faith basis for a change in the law? This is normally sanctionable under Fed. R. Bankr. P. 9011(b). The only reason why sanctions are not warranted here despite this appalling lack of diligence is the “layman perception” rule.

As they say, read the whole thing.

Alan Kluger and the Kinoki Foot Pad.

I'm not a fan of sanctions motions.

They're unpleasant, usually directed specifically at opposing counsel, and often are subject to abuse or misuse.

Of course, sometimes they are appropriate and necessary.

Still, the standard for filing one should be "clear and convincing," at minimum -- if you harbor any doubt at all about the action in question, let it go and address the issue on the merits.

Our friend Alan Kluger just had a Rule 11 motion denied by Judge Cohn involving, of all things, foot pads.

(Once again, that's a sentence I never thought I'd write!)

I like Judge Cohn's order, which you can read courtesy of Scribd here, for its simplicity and directness.

Alan undoubtedly knows what he is doing, but you have to wonder about continuing to pursue a Rule 11 motion regarding the reasonableness of the plaintiff's complaint after the Court has already denied a motion to dismiss as to a number of the plaintiff's claims.

How does that advance the litigation?

Indeed, is it possible the defendant has lost something more here than just this particular motion?

Tampa Criminal Defense Attorney Now on Google Places

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Our  Tampa Criminal Defense Law Office in Tampa, Florida recently redesigned our Google Places / Google Maps pages. We have added Photos and videos.

You can visit here.

You can also visit our site and review the qualifications of a Tampa Criminal Defense Lawyer, W.F. ''Casey'' Ebsary, Jr. by clicking here.

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SFL Friday -- Burn Baby Burn Edition

Hi kids, it's hot, I'm been working all day, and I'm in serious need of some windsurfing.

Spread some positive karma out there and have an awesome weekend -- I'll try to check in tomorrow morning.

Suge and Kanye Mediation Impasse!

sugeearningsmotion


So E Online is reporting that yesterday's Suge Knight/Kanye West mediation impassed and, according to Suge's handsome attorney Marc Brumer, the next step is trial:

West's attorney wouldn't comment, but Knight's lawyer, Marc Brumer, says the case is headed to trial if the two gentlemen can't reach a settlement. They also spent a fruitless six hours trying to make a deal in June.

Guess Kanye just phoned it in (literally).

Marc's not going to trial so fast, however -- he has three significant summary judgment motions to deal with first, all of which will be decided by Judge Seitz.

I'm partial to the one directed to Suge's claim for $18 million in lost wages, which you can review above.

It starts with this:

There is no genuine issue of material fact as to Knight’s lack of damages in the form of lost wages. Mr. Knight’s own testimony (the only record evidence) regarding his lost wages claim establishes he has no independent knowledge or recollection of his earnings prior to his injury.

Q. What was your salary per year from the company?
A. Well, when I was incarcerated, zero. So I don't recall anything except that.

Deposition of Marion H. Knight (May 11, 2010), p. 549, l. 2 – 5 (attached hereto as Composite Exhibit “C”). Knight has been unable to provide any substantive evidence to support Mr. Knight’s lost wages claim.

It goes on from there:

Essentially, the claim morphs from one of lost wages to a claim that but-for the shooting, Knight “would have” been able to work out a settlement with Lydia and Michael Harris - a couple who obtained a 107 million dollar default judgment against Death Row Records, Inc., and Knight, individually, approximately five months prior to the shooting. See Deposition of Marion H. Knight (April 28, 2010), p. 186 – 188 (attached hereto as composite Exhibit “C”).

Such an attenuated argument flies in the face of the reality that Death Row Records, Inc., had closed its doors in April 2005 (five months before the shooting) as a result of the $107 million default.

I don't know about you, but this sounds pretty compelling.

Let's just split the baby at $9 million and call it a day!

Law Updates for August 20, 2010

Ramsammy, 35 FLW 1824, 4th DCA, Murder 2 reversed should have been a Judgement of Acquittal. Interesting opinion.

Diaz, 35 FLW 1835, 4th DCA, trial court committed manifest error by refusing to dismiss potential juror for cause when there was reasonable doubt about impartiality and not rehabilitated for further questioning. Prospective juror's silence when asked if anyone could not do their job in determining whether a crime was committed and whether def committed the crime did not erase reasonable doubt as to impartiality created by her earlier equivocal response that it would be difficult and not sure if could be fair and impartial. New Trial required

Akien, 35 FLW 1836, 4th DCA, could admit a victim, 17 year old, 911 call in a rape case as excited utterance to hearsay after 35-40 minutes still under stress of excitement and not time to reflect yet.




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

Who You Calling "Boy"?

After two reversals by the United States Supreme Court, the 11th Circuit has held yet again that the use of the term "boy" to address a black man did not constitute evidence of racial discrimination:

Finally, the testimony about the two occasions when Hatley used the term “boy” was not enough evidence to create a jury issue as to whether Tyson’s proffered reason for choosing Dade was a pretext for racial discrimination.5 In Ash III we applied the factors set forth by the Supreme Court to the evidence on the record before us at that point, and we concluded that “the [‘boy’] comments were ambiguous stray remarks not uttered in the context of the decisions at issue and are not sufficient circumstantial evidence of bias to provide a reasonable basis for a finding of racial discrimination in the denial of the promotions.” 190 Fed. Appx. at 926. Under the law of the case doctrine only if “new and substantially different evidence emerge[d] at [the second] trial,” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1292 (11th Cir. 2005) (quotation marks omitted), can we revisit that conclusion of law. See id. New and substantially difference evidence about the use of the word “boy” was not presented at the retrial.

The DBR quotes the plaintiff's lawyer, who was chastised by the Court for leading questions:

“The concern is that any time you present that type of evidence, it is the jury who is listening to how those words are being said,” Haynes said. “They’re listening to the tone that was used in saying those words. They’re listening to the inflection. They are able to judge who the speaker was and what effect those words had on the person that it was being said to, and the appellate court is missing all of that. They are reading a cold, written record.”

Stephen Bright, President and Senior Counsel for the Southern Center for Human Rights, is even more pointed:

They parsed away, as only good and dedicated lawyers can do, to isolate "boy" from history, context and the chicken processing plant where the slur was used. The issue, they explained, was not whether the term was offensive to the two black men who were called "boy," but what was in the white plant manager's mind in using the word in addressing them. From the cold record, the appellate judges discerned that the manager's use of "boy" was only "conversational," "ambiguous stray remarks."

Moreover, addressing the black men as "boy" was not done in the "context of decisions at issue." In other words, employers can refer the black men who work for them as "boy" so long as they do not use the word during a promotion or hiring decision. And, remarkably, the panel decided that it did not need to be slapped in the face to conclude that the evidence of comparative qualifications did not establish discrimination. The court actually did not need a standard at all. Ash v. Tyson Foods, 190 Fed. App'x 924, 926, 2006 U.S. App. LEXIS 19750 (11th Cir. 2006). In short, it parsed its way right around the Supreme Court's opinion as if it were nothing more than a small speed bump on the road to getting back to its original result.

In last week's opinion, Carnes and Pryor even had the arrogance to chastise the lawyer for the plaintiff for trying to elicit testimony comparing the use of "boy" to the racial slur "nigger." Carnes and Pryor found it "highly improper" to inject such an "emotionally charged" word into a trial, even as they played down the emotional charge of the word "boy." These two white judges, residing in their judicial palaces as far away from the lives of ordinary people as one can get, purport to know more about what it means when a white overseer calls an African-American man "boy" than 24 Alabamians selected for two federal juries.

Alabama juries are not known for being generous in employment discrimination cases—or any other kind of discrimination cases. But Carnes and Pryor—and many of their colleagues—do not see the federal courts as a place where businesses like Tyson Foods must answer for their discrimination against black people in promoting employees.

Mercifully, Judges Elbert Tuttle, Frank Johnson and John Minor Wisdom and many—although not all—of the other great members of the 11th and former 5th Circuit who did so much to advance civil rights are not alive to see this sad, sad day.

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit is made up of African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

This is a bit over the top.  To me it resembles the regrettable attacks on Prop 8 Judge Vaughn Walker for his rumored sexual orientation.

On the other hand, I've never really given any thought to the question of diversity on the 11th Circuit.

What do you all think?

Michael Grieco Wants You To Take His Business Card.

This is more Rump's turf, but anybody remember the prosecutor who got in trouble during the Sean Taylor trial for allegedly promoting his side business as a DJ on MySpace?


Well he's got a hot new video in which he appears to be interviewed during a windstorm, "power walks" from a fake courthouse and across an abandoned office lobby, gets interrupted by his very lovely wife, possibly uses the calculator function on his phone, and then explains why you should always carry his business card.


I guess what I'm trying to say is.....I really liked it!


All kidding aside, good luck Mikey!

Marlins Financial Records Fiasco -- "I Just Don't See It" Redux

Much ink has been spilled over the last few days over the shocking discovery -- much to the amazement of several Miami-Dade commissioners -- that apparently the Marlins were doing pretty good financially during the very time they were pleading poverty in order to get our tax dollars spent on their stadium:

``It's all very explainable, because the people we negotiated with at the county and city knew everything, our banks know everything, our partners know everything,'' Samson said.

But in an e-mail exchange Tuesday with The Miami Herald, Miami-Dade spokeswoman Victoria Mallette said the county never saw the Marlins' financial records during the negotiations, although it was not surprised to hear the club made money.

Yet several members of the County Commission, who gave their final approval to the stadium's $500 million city-county funding package in March 2009, have expressed shock at the extent of the Marlins' profitability.

The problem I have with this coverage -- which includes fine Miami Herald columnists Fred Grimm and Greg Cote -- is that none of the articles provided any historical perspective to the numbers at issue.

In particular, Adam Beasley's article quotes from Dave Samson, but makes no effort to press him on contradictory statements and positions in the past taken by Marlins representatives (including Samson himself).  And the reader thus has no ability to judge the present positions against the historical record.

This important historical context is not very hard to locate btw.

In fact, we covered the very question of the Marlins' financial condition when Roberto Martinez went into Judge Escharte's courtroom back in June of 2008 and specifically asked for public disclosure of that information because Dave Samson -- incredibly, in my view -- refused to answer any questions about the topic during his deposition:

The Florida Marlins and Miami-Dade County won a slight victory in court Friday when Circuit Court Judge Pedro Echarte Jr. shot down several attempts to get Marlins President David Samson to disclose the ball club's financial picture.

The two sides are readying for a July 1 court date, with auto dealer Norman Braman contending the $609 million stadium and parking garage plan -- to be built with almost $500 million of public money -- doesn't benefit the public.

On Friday, Braman attorney Bob Martinez tried to get Echarte to compel Samson to answer dozens of questions the Marlins executive had waved off when he was deposed earlier this month.

Echarte shot that down, ruling that almost all of Martinez's questions dealing with club finances weren't relevant to the trial.

When Martinez tried to get Samson to hand over projections of attendance, the judge questioned whether such figures are paramount to the public purpose of a stadium. ''I just don't see it,'' Echarte said.

Both sides will be back in court most of this week setting witness questioning and attempting to narrow the proceedings so the trial doesn't run too long. Echarte said he has vacation plans for most of July.

Here's what I wrote back then:

We've all heard Samson cry and whine on Lebby's show about how badly the Marlins are doing financially without a publicly-financed stadium in the picture, but now he refuses to answers questions at a deposition about this very topic? I guess we're stuck with his mediocre and stunningly pedestrian movie reviews instead.

I also don't get the Judge's ruling if it is based -- as it appears to be -- entirely on relevancy grounds. Something has to be completely way off-base for the entire topic to be excluded from discovery on relevancy grounds. Were there other grounds raised? 

"I just don't see it" indeed.

Exciting New CM/ECF Developments!

Hi folks, judicial elections are over, so everyone can take a deep breath.

Here's a fun fact from a new Time poll on what Americans believe, as Stephen Colbert likes to say, in our guts:

Twenty-eight percent of voters do not believe Muslims should be eligible to sit on the U.S. Supreme Court. Nearly one-third of the country thinks adherents of Islam should be barred from running for President — a slightly higher percentage than the 24% who mistakenly believe the current occupant of the Oval Office is himself a Muslim. In all, just 47% of respondents believe Obama is a Christian; 24% declined to respond to the question or said they were unsure, and 5% believe he is neither Christian nor Muslim.

Hmm, restrictions on members of a religion holding office or becoming a judge for nothing more than simply being a member of that religion -- that impulse seems vaguely familiar.

Oh well, let's talk about something really exciting -- CM/ECF.

I just got this email from the ND NY, where I sometimes find myself:

The Administrative Office of the U.S. Courts has advised us of a prospective change to the technical filing standard associated with our Case Management / Electronic Case Files (CM/ECF) system. Since its inception, the system has required that electronic documents be filed in portable document format (PDF). Now, a move to the new more-controlled PDF/A standard is necessary to enhance CM/ECF security and to improve the archiving and preservation of case-related documents. The Judiciary adopted the PDF format more than fifteen years ago. It serves as an excellent surrogate for paper and offers reliable renderings of court documents for all CM/ECF users despite their many different computer configurations. And the CM/ECF systems nationally now contain nearly five hundred million PDF files.

However, over time, new features that raise security concerns have been added to PDF. A few examples are: the ability for a filer to monitor if and when the document is read (that feature is blocked for documents filed in CM/ECF), and the ability for a filer to incorporate active software programs in the document. Those security concerns, and concerns about ensuring that our electronic documents could be archived and retrieved for decades (even centuries) to come, has led the Judiciary to join with other government agencies, corporations and technologists around the world to develop a new international electronic document standard that addresses those concerns.

That new standard, adopted by the International Organization for Standardization in 2005, is PDF/A.  The Judiciary has delayed implementation of the PDF/A standard until major software vendors provided for the creation of this format in conjunction with standard word processing packages. Ninety software vendors now do so. All versions of CM/ECF accept PDF/A today.

I wanted to alert the Bar to this issue as upcoming releases of CM/ECF will enable courts to require that all documents be filed in PDF/A format. Those new CM/ECF software upgrades will enable each court to control its transition to PDF/A. The goal of the Judiciary is to transition fully to PDF/A.

However, to ease that transition, CM/ECF will enable courts to allow exceptions to the PDF/A requirement so that Courts can file PDF (non/A) documents until the Bar can update their PDF creator software to the PDF/A format. Ideally, exceptions will be made only infrequently and only temporarily.

At this time, the Judiciary has not set a specific target date for requiring that all new documents be filed in PDF/A.   At this point, I am writing to the members of the Bar to alert you to this upcoming change, and to encourage you to start looking at upgrading your software (ie:, Adobe, WordPerfect, Word, etc.,) or devices (ie:, scanners, copier-scanners, etc.) that you use to create PDF documents to the PDF/A format.

What the hail are they talking about?

I understand and fully endorse PDA, but can a tech-savvy reader translate PDF (non/A) into English?

Does this somehow involve metadata or, worse yet, flat bread?

(I know, flat bread is so 2007.)

3d DCA Watch -- Ticky Tacky Wicky Whacky Meaty Beaty Big and Bouncy!

I think it's pretty funny that The Who wound up releasing about five times as many compilations as original albums, but I still retain a fondness for their first one, which as Allmusic notes, actually had a purpose.

And just like The Who kept going back to the well to release newly warmed-over collections of old material, so do the best-dressed appellate judges in South Florida, who have once again returned to the sad plight of truck owners in Coral Gables.

Is there a purpose to their returning once again to ticky-tacky land?

Read on and find out......

Kuvin v. Coral Gables:

Ok, so the original panel denies rehearing but certifies this question to the Supremes:

MAY A CITY ORDINANCE, WHICH PROHIBITS THE
PARKING OF ANY TRUCK IN A PRIVATE DRIVEWAY OR
IN A PUBLIC PARKING SPACE AT NIGHT, AS APPLIED TO
A PERSONAL-USE LIGHT DUTY TRUCK, BE UPHELD AS
CONSTITUTIONAL?

 Not so fast, says the third original panel participant Judge Rothenberg -- there's already been an en banc ruling (also issued today, coincidentally by Judge Rothenberg) that has superseded our original opinion, so what the hail are you doing?

She even throws in a (ouch!) Senior Judge reference:

The original panel majority, consisting of one active member of the Court and one Senior Judge, now attempts to certify to the Florida Supreme Court a “question of great public importance.” Respectfully, because this Court has now decided this case en banc, and the en banc opinions supersede the original panel opinions issued by this Court, the original panel is without jurisdiction or authority to certify a question to the Florida Supreme Court, in view of Florida Rule of Appellate Procedure 9.331....

Rules shmules.

She continues:

The case pending before this Court has been considered and ruled on by eight of the ten judges in regular active service (two of the judges in regular active service recused themselves from considering this case). Thus, the decision of whether or not to certify a question to the Florida Supreme Court rests with the Court en banc, not with the original panel.

The original panel majority’s attempt to certify a question to the Florida Supreme Court is also a procedural impossibility. The original panel majority did not certify a question to the Florida Supreme Court based on its original decision or the original panel opinions issued. It certified a question based on the en banc ruling of the Court. The original panel has no authority to certify a question based on the en banc decision of the Court, and procedurally it cannot reach back to take any further actions as a panel once the Court has ruled on the matter en banc. Thus, the certified question issued by the original panel majority is a nullity, and I must respectfully dissent.

What am I missing here?  This seems dead on.

Now let's take a look at Judge Rothenberg's en banc opinion.

She reverses Judge Schwartz and affirms the ordinances in question, in an opinion far more detailed than the original ruling.

More interesting is Judge Shepherd's "hold your nose" concurrence, in which he takes issue with the "enthusiasm" displayed by the majority.

He also pulls out a favorite theme of his, that the judges' role is limited and our dumb elected leaders make the laws, even especially asinine ones:

I am more concerned by the enthusiasm with which the majority embraces these ordinances. I do not believe the ordinances “make perfect sense.” See supra p. 18. In fact, it is not our place to so decide. Aesthetic judgments necessarily are subjective in nature, defying objective evaluation.

If only Florida was as smart as other states and tied aesthetic ordinances to a traditional police power, but alas "Florida does not.  Accordingly, under Florida law, I am honor-bound to join the majority in this case."

Honor-bound?

What about being honor-bound to pinch your nose while doing so?

(Simultaneously throwing up your hands is optional.)

Judge Cortinas, the other member ("active member"?) of the original panel who joined Judge Schwartz in  certifying the question to the Supremes -- pens a vigorous dissent, sprinkling in references to rednecks and lowlifes, rubber stamps, purple cars, "red cows," the Wizard of Oz, George Orwell, charges of elitism, cars that "perplexingly metamorphosize" into trucks, horses that turn into zebras, and Fritz Leiber's post-apocalyptic classic, The Night of the Long Knives (I made that last one up, but it would have worked, trust me):

Truth be told, the author of this opinion does not particularly like trucks, including the Ford F-150. He would not want to own one and does not like driving alongside or behind one. He finds the F-150 to be bulky the same way some minivans and SUVs are bulky. However, a judge must put aside his or her personal likes and dislikes and apply the law equally and fairly. Although a judge may not like trucks of any kind, he or she must recognize that there are many people who think differently. Indeed, the F-150 is the personal-use vehicle of choice for millions of Americans, including some residents of Coral Gables. It is not an aberrant vehicle cherished by rednecks and lowlifes, as the tone of the majority opinion suggests.

This is very good stuff, but I think the point is even if it were an "aberrant vehicle cherished by rednecks and lowlifes,"

the Court would be under the same obligation to decide the issue equally and fairly.

These opinions are sure going to make for some awkward coffee-swilling moments around the judicial water cooler.

Heights of Audacity.....Officially Reached!!

Heights of Audacity

Just curious -- is anybody in the office having another baby soon?

(Don't worry, the way things are going this case might still be here nine months from now.)

Samantha Ruiz Cohen and Monica Gordo Receive Rousing Anti-Gay Anti-Endorsement!

I think it was ole Honest Abe who once said "[p]oliteness costs so little."

With that in mind, a tipster passed along this exceedingly polite anti-endorsement for judicial candidates Samantha Ruiz Cohen and Monica Gordo, apparently by the editor of something called El Nuevo PATRIA:

Voter Alert: UNQUALIFIED MIAMI-DADE JUDICIAL CANDIDATES

TO THE GENERAL PUBLIC OF MIAMI-DADE COUNTY:

Samantha Ruiz Cohen and Monica Gordo, both candidates for judge in Miami-Dade County, sought and received the endorsement of the extremist homosexualist hate group, "SAVE-Dade."

This is the same anti-Life, anti-Family, anti-God homosexualist group that vehemently opposed the Florida
Marriage Protection Amendment defining civil marriage as the union of one man and one women, and that continues to fanatically attack Florida's Adoption Law that protects abandoned and orphaned children from falling into the hands of admitted homosexuals via adoption.

Both Samantha Ruiz Cohen and Monica Gordo know perfectly well that the homosexualist group in question is an admitted extremist, Liberal hate group and yet they met with them and gladly ACCEPTED their endorsement, i.e., their kiss of death! This speaks volumes about their lack of integrity and judicial temperament!

Furthermore, ANY group calling itself "Conservative" and asking the public to support a homosexualist candidate is perpetrating a FRAUD and SCAM on the public. Do not be misled or deceived!

El Nuevo PATRIA, the oldest Cuban Exile anticommunist and anti-Liberal newspaper in Florida, wants you to know and make an informed decision when you vote next Tuesday, August 24th.

Orphans "falling into the hands of admitted homosexuals" -- I like the imagery!

Also "admitted extremist, Liberal hate group" -- really, is there any other kind?

Vote, Plebes!

I understand there is some kind of election today.

Make your mom proud and go vote, ok?

In other news, the intrepid one reports that the three foreclosure firms targeted by Bill McCollum's office is fighting back, filing motions to quash the subpoenas served upon them.

One of the firms is represented by WPB attorney Gerry Richman:

The subpoena has had a chilling effect on clients and has led to defense lawyers citing the investigation in motions to have the Shapiro firm disqualified from cases. One judge, according to the petition, has said in open court he will deny all summary judgment motions filed by the law firms named by the attorney general based solely on the existence of the investigation.

In an interview, attorney Gerald Richman, who is representing the Shapiro firm, said he did not know who the judge is. He denied the Shapiro firm falsified any documents.

“One of our concerns is the broad brush,” he said. “We are not in the category with David Stern, we are not in the category with any other law firm. Hopefully we will not lose clients. We’re doing whatever we can to fight back.” 

Question -- when doing a media interview regarding that type of allegation, wouldn't it be helpful to have the name of the judge on your desk somewhere in case you are asked about it?

Or maybe my pal Gerry knows but doesn't want to say who it is?

Paralegals Working Overtime.

You know how your paralegal responds to your stupid emails on the weekend, brings your annoying depo materials home to work on at night, and answers your preposterous phone calls on a Sunday morning when you can't find a document -- can you believe they apparently expect to be paid for this???

Not surprisingly, I like the comfortable and confident way Judge Marra deals with the Iqbal argument (a bill also languishing in Congress) that the pleading does not sufficiently detail how or when the defendant law firm The Hurst Law Group allegedly violated the FLSA:

The allegations sufficiently state how Defendants violated the FLSA; namely, by not paying Plaintiff for overtime hours worked and by not maintaining accurate records of hours worked by Plaintiff. To the extent that Defendants seek the exact date they violated the FLSA, discovery will provide Defendants with more specific dates of overtime allegedly not paid and the lack of this information is not grounds for dismissal of the Amended Complaint. See Acho v. Cort, No. C 09-00157 MHO, 2009 WL 3562472, at * 3 (N.D. Cal. Oct. 27, 2009) (“[i]t cannot be the case that a plaintiff must plead specific instances of unpaid overtime before being allowed to proceed to discovery to access the employer's records”).

 Employment lawyers, is this the crest of a wave of new suits against local law firms?

It's Deja Vu All Over Again?

Happy Monday, plebes!

It's a slow news day, law-wise.  Any of you smart guys have any tips for your humble South Florida civil law blogger?

Well, things are really trending nicely with Obama's mosque.

Indeed, I think it's so cute to see things like this:

Opponents of the $100 million project two blocks from the World Trade Center site appeared to outnumber supporters. Bruce Springsteen's "Born in the USA" blared over loudspeakers as mosque opponents chanted, "No mosque, no way!"

Signs hoisted by dozens of protesters standing behind police barricades read "SHARIA" – using dripping, blood-red letters to describe Islam's Shariah law, which governs the behavior of Muslims.

Steve Ayling, a 40-year-old Brooklyn plumber who carried his sign to a dry spot by an office building, said the people behind the mosque project are "the same people who took down the twin towers."

Opponents demand that the mosque be moved farther from the site where more than 2,700 people were killed on Sept. 11, 2001. "They should put it in the Middle East," Ayling said.

On a nearby sidewalk, police chased away a group that unfurled a banner with images of beating, stoning and other torture they said was committed by those who followed Islamic law.

A mannequin wearing a keffiyeh, a traditional Arab headdress, was mounted on one of two mock missiles that were part of an anti-mosque installation. One missile was inscribed with the words: "Again? Freedom Targeted by Religion"; the other with "Obama: With a middle name Hussein. We understand. Bloomberg: What is your excuse?"

Aah, the angry hardhats are back.

I have a modest proposal.

Since we've already slipped over the slope of "civil" debate on a Muslim-free zone near Ground Zero, perhaps we should take the next step and concentrate -- for their protection, of course -- all Muslims in a particular area of New York so that they can be free to practice their American-hating religion among their own kind.

We should probably also take up Rick Lazio's suggestion and investigate the Imam behind the project, demand "transparency," and pretty much audit the books of all mosques to see if they are financed by secretive overseas Jewish  Islamic cartels that are working against the interests of the Fatherland Homeland.

We should also consider laws, reasonable in scope and limited in application, that would restrict the growing and pernicious influence of radical Islam in the universities, the medical community, banking, and of course the legal profession. 

These are just ideas -- feel free to suggest some of your own.

My favorite line from this movie btw -- "42 percent of all liberals are queers!"

Exactly!  I've always said, you can't argue with statistics.

See what happens when I don't have any legal news to write about?

Shuster & Saben obtains dismissal of Foreclosure case due to Lender’s Failure to Verify Complaint.

The Melbourne office of Shuster & Saben obtained a dismissal of a Brevard County foreclosure complaint based upon the Plaintiff’s failure to verify the complaint. On February 11, 2010, the Florida Supreme Court’s amendments to Rule 1.110(b) became effective. This new rule requires that in foreclosure cases involving residential real property in Florida the Plaintiff/Bank must Verify the compliant. The pertinent part of the new rules sets froth:

“When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: ‘Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”


When the firm’s Palm Bay foreclosure client was served with the compliant, they brought the all of the documents they received to the firm’s Melbourne office for a free consultation. The compliant was not titled as a “verified complaint” and no verification was include with the documents the client received. During the consultation we checked the Brevard County clerk of Court on-line docket and confirmed that the lender’s attorney failed to comply with Rule 1.110(b) and had not verified the complaint. The firm moved to dismiss the case in April and on June 8, 2010 a hearing was held on the motion. In the hearing counsel for the lender argued the rule was not final when the foreclosure complaint was filed. The Court held that rule became final prior to date of the hearing and granted the motion to dismiss with leave to amend. A redacted copy of the order can be viewed using the link below.

Order Granting Motion to Dismiss

The Foreclosure defense attorneys at Shuster & Saben have offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We are also available for consultation in Boca Ration, West Palm Beach, Naples, Bonita Springs, and Orlando. Homeowners who had foreclosure cases failed against them after February 11, 2010 that were not verified can e-mail foreclosuredefenselaw@gmail.com with any additional question or leave a comment on this blog page.

SFL Friday -- Who Knew Calendaring Was So Important?

Dates schmates, why does the practice of law always involve pesky deadlines?

And some are apparently more important than others:

THIS MATTER is before the Court on Lead Plaintiffs' Motion to Reconsider and Vacate Order Striking Motion for Class Certification [DE-801, to which Defendants have not responded.  Plaintiffs seek reconsideration of the Court's sua sponte order that struck Plaintiffs' Motion for Class Certification because it was filed more than three months after February 28,2010 deadline for filing the motion and because Plaintiffs had not sought leave of Court to file the late motion. Because Plaintiffs have not demonstrated the need to correct clear error or to prevent manifest injustice, the Motion is denied.

Oops!

Oh well, it's just a class cert motion.

It's Friday, so that means I will soon be off to sail the briny seas, to spread my Muslin seed, to minister to those in need, and of course to litigate bizarre copyright misdeeds.

Hail, I'm done.

Ok, two more -- after a brief respite, France is once more deporting "undesirables" to the East -- why not, it worked out so well the last time -- and boy oh boy they sure know how to do a war protest in England!

Have a great weekend!

Did Threat of Lawsuit Cause Herald to Run Jeff Greene Correction?

We previously reported that Jeff Greene has retained defamation specialist L. Lin Wood to possibly bring suit against the Herald over some of its election coverage.

One of the contested articles dealt with Mike Tyson, coke, naked women, and Jeff Greene's yacht (don't those things always go together?):

In another story, the Times linked comments Mike Tyson made to Sports Illustrated in an interview published on July 28 to time the boxer spent aboard Greene's 145-foot yacht, describing the activity on the yacht as lavish, teeming with naked, drunken parties. Greene denies those claims.

By pure coincidence, the Herald ran a small "correction" this morning that does not appear to be on the Herald website:

Boxer Mike Tyson's July interview with Sports Illustrated, quoted in a front-page story on August 13, described his travels in Europe during the summer of 2005, not 2007 when he served as Jeff Greene's best man.  In addition, Tyson has since clarified that the 2005 events he described involving a drug dealer from Amsterdam did not occur aboard Greene's yacht and that "he didn't do drugs on the boat."

Hmm, my spidey sense tells me a few Herald lawyers had something to do with this correction.

Score one for Mr. Wood?

(You can read one of Lin's demand letters here).

Magistrate Judge Torres Asks A Good Question.

 torresquestion

That one being, "why would someone move to enforce an arbitration agreement and then not pay the arbitrator, forcing the arbitration to shut down and causing plaintiff to seek to reopen the case in federal court"?

Let me take a stab at this: maybe because the defendant wants to impede an adjudication on the merits, and is trying to "exhaust" the limited financial resources of the plaintiff and leverage or squeeze a financially-strapped claimant -- via continuing delay, multiple filings, and useless arbitration expenses -- into walking away or accepting less than he or she might otherwise be entitled?

Oh well, that's why everyone calls me a cynic.

Here's how Judge Torres looked at it:

This matter is for some inexplicable reason back before the Court after having a bench trial under 9 U.S.C. § 4, after the Court’ Findings of Fact and Conclusions of Law were prepared, and after the Court dismissed the case in favor of contractually required arbitration. The pending motion to reopen the case [D.E. 71] was filed after the Defendant persistently refused to timely pay its share of the arbitrator’s fee, which resulted in the arbitrator dismissing the proceedings. Not surprisingly, Plaintiff quickly proceeded back to this Court to reopen the case alleging that Defendant defaulted/waived its contractual right to proceed with arbitration.

Defendant, also not surprisingly, opposes the motion arguing that it tried to cure its default on payment to the arbitrator, that Plaintiff is the one who is preventing them from curing, and that Defendant is still ready, willing and able to proceed with arbitration but likely before a different arbitrator or utilizing a different but comparable arbitration procedure.

The Court is frankly disappointed to have to deal with this case again after having dealt extensively with the parties and the issues they raised. Even though Defendant carried the day in those earlier proceedings by the skin of its teeth in convincing the Court to enforce an arbitration agreement that was encumbered with a material scrivener’s error, and an agreement that was not even found until the first day of trial scheduled under § 4 of the FAA, Defendant was so overwhelmed with excitement over its procedural victory that it forgot the most elementary and basic of tasks necessary to carry out that arbitration that it fought for – paying the arbitrator’s fee. Now the arbitrator that the parties contractually agreed upon in the employment agreement in question refuses to open the case without the Plaintiff’s consent. And the Plaintiff does not consent, most likely because he never wanted to arbitrate this case in the first place.

Faced with this record, the Court could simply scoff at the problem, deny the motion, and force the Plaintiff to try again to get the Defendant to abide by its contractual responsibilities. But the question that must first be answered is why? Why under these circumstances, when the Plaintiff claims that he has a statutory right to seek relief under the laws of the United States, would a federal court turn him aside again in favor of arbitration when the party who demanded that arbitration in the first place so cavalierly ignored Plaintiff’s right to speedy resolution of statutory claims when the Court’s eyes looked elsewhere? To ask the question is to answer it.

 Judge Torres also rightly notes:

The irony, of course, is that these supposed benefits of arbitration versus litigation are utterly lost in a case, such as this, filed in November 2008 that still has not gotten off the ground because of disputes over arbitration. We note as well that most FLSA cases filed in our Court are resolved routinely within nine months. But we digress.

 Don't digress!

That's a key insight, particularly as the Arbitration Fairness Act continues to languish in Congress while folks debate whether Nazis should build mosques on Newt Gingrich's tuches (what I affectionately call "Ground Zero").

Nice opinion all around.

The Second Circuit on "Capturing the Friedmans"

There are few films about domestic and family life more harrowing than "Capturing the Friedmans," the 2002 documentary about the well-off family from Great Neck, NY, and their journey through the criminal justice system after the father and son were charged in 1987 with multiple counts of child molestation.

(The film is up there with Terry Zwigoff's brilliant and severely overlooked Crumb, now newly re-released with fascinating audio commentary by the director).

Well the Second Circuit has finally weighed in on son Jesse's habeas petition, and while denying the appeal the court forcefully addressed misconduct by Nassau County prosecutors and the judge who presided over the trial, all of which took place during a period of child molestation hysteria.

From the NYT:

Mr. Friedman was charged with his father, Arnold (who committed suicide in prison in 1995), and has sought to overturn his conviction through various legal tactics — most recently by arguing that some of the children who accused him were hypnotized before they testified to grand juries.

A United States District Court judge, Joanna Seybert, rejected that claim in a habeas corpus petition in 2008 on grounds that it was filed too late — a decision that the United States Court of Appeals for the Second Circuit reluctantly upheld on Monday. The appellate court, in fact, took great pains to suggest that “a reasonable likelihood” exists that Mr. Friedman may have been wrongfully convicted.

“While the law may require us to deny relief in this case,” the panel of judges wrote, “it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained.”

Those concerns, the court wrote, included “a moral panic” about child abuse that “swept up Nassau County law enforcement officers” in the 1980s and 1990s, leading them to perhaps feel “comfortable cutting corners in their investigation.” The court wrote, too, that the actions of the Nassau County district attorney’s office were “troubling” because instead of acting to “neutralize the moral panic, the prosecution allowed itself to get swept up in it” as well.

The appellate court also had harsh words for Abbey Boklan, the Nassau County Court trial judge in the case, who has since retired. Mr. Friedman, the federal appeals court found, could not have expected to receive a fair trial from Judge Boklan, “who admitted that she never had any doubt about the defendant’s guilt even before she heard any of the evidence or the means by which it was obtained.” She could not be reached for comment on Monday.

Ron Kuby, Mr. Friedman’s lawyer, said he had never been so pleased by a losing decision, adding it was the first public vindication of Mr. Friedman in more than 20 years. “It’s an incredible ruling,” he said. “It’s the strongest language I’ve ever the seen the Second Circuit use.”

See, this is an example of how to "hold your nose" and enter a ruling that the law compels but which may not be entirely fair or just.  Use your position to actually identify the issues over which you are troubled, so that a spotlight can shine on them and the participants can feel some sense of vindication.

The good news, btw, is that the Nassau County prosecutors are reopening the investigation.

(The bad news, according to Crime and Federalism, is nothing prevents this from happening again.)

3d DCA Watch -- The Case of the "Cryptic" Letter

Hello kids, it's another sun-shiny day in paradise, so let's change the mood by digging deep into the recesses of the bunker, into the cool dark crevices where -- long after the last coffee has been swilled -- we may yet dredge up from the slimy underbelly........The Case of the "Cryptic" Letter:

King Cole v. USPlate:

Insurance claim sj reversed per curium because of material issues of fact on coverage and defenses, ho hum.

Not so fast.

In walks Judge Rothenberg:

On January 13, 2006, in a letter to the insured accompanying the second payment, USPlate indicated a belief that it had fulfilled its policy obligations related to the damage caused by Hurricane Wilma. Nevertheless, the letter invited the insured to notify USPlate of any other damages there may have been, offering to reopen the claim should the need arise. USPlate’s letter specifically stated: “This claim is now closed. If you should find any additional damage as a directresult of Hurricane Wilma we will reopen the claim as necessary.” The insured’s initial response to this letter was more than two years of silence.

Finally, on January 29, 2008, counsel for the insured broke that silence by sending USPlate a cryptic letter which asserted that USPlate did “not adequately compensate” the insured. The letter did not provide the amount of compensation that was lacking. The letter did not specify whether the lacking compensation was related to the insured’s principal plate glass damages or to its supplemental “boardup” claims. The letter included no attachments or invoices. Nevertheless, the letter demanded payment of some unknown amount directly to counsel for the insured’s law firm with the law firm as the sole payee. Counsel for the insured, by way of this letter, gave USPlate thirty days to respond.

Less than thirty days later, on February 25, 2008, USPlate responded, asking counsel for the insured to verify that he was authorized to represent the insured and noting that it had “not received any further claim or communication from [the insured]” after paying $104,928.48 more than two years earlier. However,unbeknownst to USPlate, and despite counsel for the insured’s letter providing USPlate with thirty days to respond to its demand for payment of an unspecified amount for unspecified damages, the insured had already filed suit almost three weeks earlier.

So the issue is whether this cryptic letter is sufficient "notice" to create an issue a fact.

The Judge says no:

However, the undisputed facts reveal that the insured opted to file suit before notifying USPlate in any way that it was claiming $179,096.82 in glass replacement and repair costs beyond the $104,928.48 that USPlate had already paid. In fact, as the insured readily admits, it failed to notify USPlate that it had glass damages beyond the $104,928.48 USPlate paid in 2006, or provide USPlate with a single invoice related to this additional amount until after the lawsuit was filed.

One question I have is whether the insured served process on the suit when it was filed.  Maybe it was filed for statute of limitation purposes and they were waiting to see what the insurer did in response to the letter?

I guess the solution is to be less cryptic, but really what fun is that?

Miami Herald Facing Possible Lawsuit Over Jeff Greene Coverage.

CNN is reporting that Bryan Cave litigator L. Lin Wood has been retained to possibly sue the Miami Herald and St. Pete Times over several articles on Jeff Greene that the candidate claims are defamatory:

Greene's lawyer has demanded the St. Petersburg Times and the Miami Herald publish the retractions to correct three articles the newspapers published earlier this month. The articles were written by St. Petersburg Times reporters and were first printed by the Tampa-area newspaper. The Miami Herald printed the articles shortly thereafter. The papers have a working partnership and often share resources to cover state news.

Times editor Neil Brown said last week that no retraction is forthcoming, and Greene is expected to follow through, potentially as early as Friday.

In one of the stories, first published on August 8, the Times reported that in 2006, Greene had sold California property to Delbert McConville, who is now in jail facing conspiracy and money laundering charges. Greene admits to selling McConville 300 condos, but insists that his connection to McConville ends there and that he was not a party to the dealings McConville engaged in that led him to jail.

In another story, the Times linked comments Mike Tyson made to Sports Illustrated in an interview published on July 28 to time the boxer spent aboard Greene's 145-foot yacht, describing the activity on the yacht as lavish, teeming with naked, drunken parties. Greene denies those claims.

In an August 16 letter to Miami Herald executive editor Anders Gyllenhaal, attorney L. Lin Wood, said the stories are "replete with false, misleading and defamatory statements of face concerning Mr. Greene."

Wood sent a similar letter to the top editors at the Times on August 11.

Both papers have endorsed Meek in the Democratic primary.

To paraphrase Steely Dan, Lin Wood is a major dude.  He previously represented accused Centennial Olympic Park bomber Richard Jewell, the parents of Jon Benet Ramsey, Howard K. Stern, and has been involved in many other high-profile defamation cases.

I'm not sure if the Herald will retain our own silver fox, Sandy Bohrer, to defend these claims, but if so we are looking at a powerhouse match up.

One question (and no offense to the highly qualified Mr. Wood) but couldn't Greene hire a Florida lawyer to prosecute these claims?

Some of us could use the work!  (I guess Lin will need local counsel).

Law Updates for August 13, 2010

E.J., 35 FLW 1728, 4th DCA, vehicle passenger consent - Passenger did not consent to pat down by spontaneously turning and placing her hands on the top of the car, and spreading her legs, after she exited the vehicle at the request of the officer for an inventory search where the driver was arrested for DUI. Passenger merely acquiesced to police authority. The passenger was 14 year old juvenile and first encounter with the police. Officer did not requested consent and juvenile copied what the arrested driver was doing. Frisk not supported by reasonable suspicion as the police had no information that the def was armed and dangerous.

Wicklow, 35 FLW 1734, 4th DCA, Prosecutorial Misconduct - New trial cumulative effect elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel, and improperly bolstered credibility of key witness. The combined effect of this improperly led to a conviction.

Beahan, 35 FLW 1760, 1st DCA, suppress evidence - No reasonable suspicion that the def was impaired at the time of the traffic stop, therefore subsequent search of the vehicle was unlawful. Evidence seized from the vehicle should have been suppressed. Neither fact that def was driving slowly in residential neighborhood, fact he stopped a few times on the side of the street, made improper u-turn, nor fact that took place in area where drug transactions are known to take place is sufficient to support decision def was driving his car impaired.

Kates, 35 FLW 1795, 1st DCA, Resist ofc without violence - Error to admit detailed testimony regarding an uncharged drug transaction to describe events leading up to the charged offenses. Was not necessary for jury's understanding of officers encounter with the defendant.




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

Kanye West To Mediate with Suge By "Telephone"

This Solomonic order by Judge Seitz splits the Kanye West mediation baby nicely in half:  you can go be "outside the continental United States" when you are supposed to be mediating in Miami, but you have to appear by telephone and you need to send some authorized flunkies to go sit in a room with Suge.

Listen, I agree with Kanye -- if the choice is between rapping with Beyonce or sitting in a conference room on Brickell with a bunch of lawyers, I think I know what I would choose.

But the telephone is so dated -- why not let Kanye appear via Skype or better yet his Twitter feed, filled with recent and utterly charming bon mots such as "Sometimes I get emotional over fonts."

Did I mention this guy is hanging around with Beyonce?

Judge Moreno Has An Interesting New Case!

Hmm, I wonder if Judge Moreno has anything interesting on his docket.

Let's see, admiralty, wage claims, ADA......hey now:

Spanish-language soap opera star William Levy demands $10 million from a Los Angeles attorney and his clients, claiming they tried to extort $950,000 from him with false accusations that he forced a girl to perform oral sex on him, and gave her a venereal disease.
     Levy, an unmarried actor whose life has become tabloid fodder for Spanish-language media, claims attorney Steven Lerman at Steven A. Lerman & Associates "maliciously misstated the facts" in order "to blackmail/extort him into a settlement for alleged acts defendants knew were fabricated and untrue."
     Levy also sued the young woman, Karla Alvarez, and her mother, Ana Saucedo, in Federal Court.
     Levy acknowledges in the complaint that he spent time alone with Alvarez in his hotel room on the night of July 18-19. He claims that Alvarez told him that she was 19 years old. He disputes Alvarez's alleged claim that he "held her against her will, threatened her, strangled her and forced her to have oral copulation."
     Levy claims that "On Wednesday, July 21, 2010, plaintiff was informed that defendant Alvarez had filed criminal charges against him for nonconsensual oral copulation and batter on a minor. Defendant Alvarez claimed that Levy knew she was seventeen (17) years old while she allegedly performed oral copulation on him."
     Levy adds: "The allegations further state that Levy transmitted a sexually transmitted disease (hereinafter 'STD') to defendant Alvarez. All of these allegations are known to be false by defendant Lerman and Law Firm. None of these allegations were corroborated by the authorities nor is there any evidence which would support such allegations."
     Levy claims that "defendant Alvarez and defendant Lerman acted in concert and with deliberate malice to cause Levy harm by virtue of attempting to blackmail/extort him into a settlement for alleged acts defendants knew were fabricated and untrue."

In other words -- boring!

Courtesy of Scribd, you can read a full copy of Coral Gables litigator Ralph Patino's muy caliente complaint here.

(Godwhacker, that photo is for you my friend.)

Daubert Happens.

Lest any of you forget that whole "gatekeeping thing," the 11th reminds us by affirming Judge Moore in a case where an otherwise well-respected, accomplished, and qualified expert offered an opinion that was not deemed reliable either as to general or specific causation.

Here's a key passage on the expert's flawed "differential diagnosis" methodology:

Kilpatrick is correct that differential diagnosis itself has been recognized as a valid and reliable methodology. But that is not the issue about which the district court found fault. Rather, the district court found that Dr. Poehling’s application of this methodology was flawed. In order to correctly apply this methodology, Dr. Poehling must have complied a comprehensive list of potential causes of Kilpatrick’s injury and must have explained why potential alternative causes were ruled out. However, Dr. Poehling only ruled out two causes – thermal energy and gentian violet contrast dye. He clearly testified that he could not explain why potentially unknown, or idiopathic alternative causes were not ruled out. Dr. Poehling also admitted that neither he nor anyone else in the medical community “understands the physiological process by which [chondrolysis] develops and what factors cause the process to occur.” Thus, the key foundation for applying differential diagnosis was missing, and based on these deficiencies, the district court found that Dr. Poehling failed to apply the differential diagnosis methodology reliably.

Why doesn't the darn doc just do some good, old-fashioned epidemiological studies?

Oh yeah, there is this:

Kilpatrick’s argument that conducting any epidemiological studies would be unethical, because it would require the potential destruction of a person’s shoulder cartilage, has some merit.

I'm not seeing the problem.