Parsing the Herald's Dismissive Coverage of Stewart/Colbert's Rally

Given that Stewart's satiric message has always been directed to the mainstream media and their failure to (1) hold the crazies accountable; and (2) raise the level of discourse without lapsing into clichéd "he said-she said" hackery or alarmist stupidity, it's no wonder the MSM has pushed back so hard on his rally yesterday.

A fine example of the dismissive nature of the mainstream coverage appears in today's Herald, courtesy of McClatchy News Service.

Here's the first thing that caught my eye -- dismissing or minimizing the number of people in attendance:

[A] pair of comedians drew tens of thousands to the National Mall on Saturday with a blend of jokes and music meant to counter some of the anger and fear they see in the country.

Got it -- "comedians," they just make jokes and throw spitballs.

Would it be that hard, given the context of this event, to at least describe them as the NYT does -- as "political satirists"?

"Tens of thousands" is technically correct yet highly misleading.   That makes me think maybe 40 to 50 thousand showed up.  For that matter it would be technically correct to say "tens of hundreds."

Yet, although estimates vary, there is no question a fairer description would be "hundreds of thousands."

Who you gonna believe, me or your lying eyes?

Here's the part that really annoyed me:

The smell of marijuana wafted through the air at one area of the mall.

How utterly gratuitous!

Gratuitous, unless you were trying to reinforce the Fox News/O'Reilly meme that Stewart's audience is merely a bunch of  "stoned slackers."

So, to summarize, perhaps thirty thousand stoners showed up to listen to music and watch comedians make jokes.

Destruction and Spoliation of Evidence | Sanctions

Spoliation

Florida Cybercrime  Attorney has been researching sanctions for destruction of evidence, also known as Spoliation. The Sanctions: Defendant to Pay Attorneys' Fees or Serve Two Years Imprisonment for "Egregious" Discovery Misconduct.

The plaintiff sought sanctions arising out of the defendants' intentional spoliation of evidence and other litigation misconduct in this intellectual property litigation. There were eight preservation issues including: use of wiping software; failure to implement litigation hold; failure to preserve an external hard drive; failure to preserve files and e-mails notwithstanding plaintiff's demands and several court orders.

The Judge found through four years of discovery, the defendant had actual knowledge of his duty to preserve, “yet delayed and misrepresented the completeness of the ESI [Electronically Stored Information] production and deleted, destroyed and otherwise failed to preserve evidence.” The Judge then found the destruction "collectively constitute[d] the single most egregious example of spoliation [that he has] encountered in any case & in nearly fourteen years on the bench."

The sanctions: Defendant to be imprisoned for up to two years, or until he paid the attorneys' fees and costs estimated to be a "significant amount."

Sources:

Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3703696 (D. Md. Sept. 9, 2010)
http://www.krollontrack.com/newsletters/clu-102010/CLU-102010-decisions.html ?news=US_CaseLaw_Oct_10-a&#D1

SFL Friday -- Russ Adler Deposition Follies!

The Intrepid One™  reports on Russ Adler's deposition, which went off about as smoothly as everything else in Rothstein-world:

Lichtman and Adler’s lawyer, Fred Haddad of Fort Lauderdale, stood and yelled at each other several times in the highly charged session. After Lichtman sarcastically questioned Adler’s assertions that he was a “premiere” lawyer in Broward County, Haddad threatened to have Adler leave the deposition if Lichtman did not treat Adler with respect. Later, Lichtman threatened to stop the deposition and get a protective order to force Adler to answer his questions.

“You’ve been argumentative with me all day,” Lichtman said. “I don’t want your speeches.”

 This may be my favorite part (by Jon Burstein in the Sun-Sentinel):

At times, Adler lashed out at Lichtman, accusing him of trying to trap him with "memory games" and telling the bankruptcy attorney: "I don't trust you. I don't believe you."

Adding a side element to the deposition was Adler's wife, Katie Adler, who repeatedly spoke up, much to the chagrin of Adler's attorney, Fred Haddad, who threatened to kick her out of the room.

Katie, I appreciate the sentiment, but let your man handle this, ok?

In other news eat lots of salt, charm may not be a positive personality trait, and it's always mind over matter.

I'm cutting out of downtown early as I understand they may be something happening here later, so happy windsurfing to all and have a great weekend!

Firm wins Two Foreclosure Cases in 24 Hours

Thanks to the efforts of the Miami and Melbourne offices of Shuster & Saben, two of our clients no longer have foreclosure lawsuits pending against their homes. On Thursday, October 28, 2010, Thomas Willis of the firm’s Miami and Doral offices was in at the Miami-Dade Courthouse for a status conference and docket sounding in a foreclosure case that the firm has defended for nearly two years. The status conference hearing was set on the Court’s own motion and attendance was mandatory for the attorneys for both sides. The bank was represented by a large “foreclose mill” whose lawyer failed to appear. The Court then granted our firm’s oral motion to dismiss the case for the bank's lawyer's failure to attend the Court ordered hearing.

On Friday, October 29, 2010, Richard Shuster of the firm's Melbourne office was in court in Brevard County on a motion to dismiss filed on behalf of the firm’s Cocoa, Florida client. The client came to the firm when his case was approximately a year old. Firm attorney, Richard Shuster, noticed that there had been no activity in the case for over ten months. The firm accepted the case and waited an additional six weeks until there had been a year and a day since the last record activity. Once the bank’s law firm, went over a year without any record activity, Shuster & Saben moved to dismiss the case for lack of prosecution. After our motion was filed the bank discharged their counsel and hired new attorneys. The new attorneys argued that the file should not be dismissed because the case was in a “loss mitigation hold.” The Court rejected these arguments and dismissed the case.

In both of the above cases the firm will now seek attorney’s fees against the bank. If the firm, on behalf of our clients, recovers attorney’s fees from the banks most of the fees recovered will go to our clients to reimburse their legal expenses.

About Shuster & Saben: Shuster & Saben, LLC is a litigation firm that defends foreclosure cases from the firm's four offices located in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne. We believe that going to Court in person (instead of by phone) makes a difference. This is why we have multiple offices and do not take cases in Tampa, Jacksonville, the Panhandle,and other places that are to far to reach from one of our offices. If we can't help you we won't take your case. If you live in an area where we do not practice we can tell you who in your area fights foreclosure cases with skill and passion.

Another Residential Search | Consent Invalid

Residential Search

Florida Criminal Defense Attorney has been researching  Searches and seizures in a Residences under Florida Law in State Court when there Consent is an issue Recently, a judge granted motion to suppress evidence. Evidence was collected in defendant's residence after consent to search the residence was coerced. The Court decided consent was obtained after an unreasonable display of police force.  A reasonable person would believe that he had no choice but to acquiesce to the officer's request to enter.

Residential Search and Seizure ? Call Toll Free 1-877-793-9290

Source: 35 FLW 2377a.

11th Circuit to Judge Gold: Know Your Place.

The question of whether Judge Gold has the power to summon EPA Administrator Lisa Jackson to a Miami courtroom to talk about the lamentable state of Everglades restoration presents an interesting conflict for the folks in Atlanta.

On the one hand, the 11th is typically very deferential towards government power (and the Executive Branch in particular).

On the other hand, the 11th is also very protective of its own power, and by extension that of the district courts they oversee.

But in a split decision, Executive trumps Judicial nanny nanny boo boo:

The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution

I'm having trouble with the first sentence --  "compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers....."

I think it certainly can encroach on the separation of powers, but does it always do so by definition?

Judge Martin's dissent hits the issue head on, which is that clearly the separation of powers is implicated (not encroached) but the order is appropriate given the history of the EPA's contumacious conduct toward the Court and the public -- which the majority refuses to acknowledge set the backdrop for Judge Gold's command:

[T]he EPA has unequivocally and repeatedly flouted and otherwise refused to comply with the court’s previously entered Summary Judgment order. As the April Order explained, on July 29, 2008, the district court issued a 101-page Order holding the EPA in violation of the Clean Water Act and prescribing directives to remedy those violations. Yet extraordinarily, over one year later the EPA had still not acted, and ultimately did not act until November 4, 2009, after the plaintiffs filed a motion for contempt. Furthermore, as the district court took great pains to explain, the substance of the EPA’s 2009 Determination flatly contravened the 2008 Summary Judgment Order. In the face of this inaction, the court warned that nothing short of the “effective[] repeal of [a] clearly expressed Congressional mandate” was at stake.

I also think it's a bit of cheap shot for the majority to dismiss concerns over the Everglades by noting that the EPA head also has a bunch of other really important stuff on her plate.

Finally, whatever happened to the mandamus standard of review?  That seems to have gone totally out the window here.

(I admit, I'm a standard of review junkie.)

As usual the barbed, bearded, cranky wondering Jew minstrel put it best:

"But even the president of the United States sometimes must have to stand naked ..."

Judge Gold got this right.

Magistrate Judge Brown: Case "Totally and Completely Out of Control"!

Totally Out of Control Order

You know how when a big piece of litigation ends there is a feeling of loss, sometimes even a little remorse?

That's how I'm going to feel when this case ends, which apparently will be exactly March 18, 2011:

The Court finds that it must manage its calendar, and this case in particular as it has gotten totally and completely out of control.  To allow it to go unfettered will allow what this Court stated early on - "it's all about the journey, not the destination."

"Allow it to go unfettered"?

As in "if the disease is allowed to go unfettered the parasite will spread rapidly through the body, leading to paralysis, coma, and ultimately a slow, painful death."

(He probably meant "unfettered" in some other sense.)

Florida Supreme Court Weighing Hank Adorno Disbarment.

Did you know Hank Adorno is still a lawyer?

I didn't, but he may not be for long:

The court ordered Adorno to show cause by Nov. 16 why a suspension of up to three years or disbarment should not be imposed.

The Florida Bar had recommended a six-month suspension, but a referee who heard the ethics charges against Adorno recommended only a reprimand, the lightest possible punishment.

Adorno did not respond to a call for comment by deadline.

The court raised the issue of a suspension on its own, according to the two-page order written by Chief Justice Charles Canady.

The court ordered Adorno, the law firm president, to be suspended within 30 days so he can close out his law practice — or immediately if he is no longer practicing. The court also ordered him to accept no new clients, send a copy of the order to all existing clients and courts, stop withdrawing money from trust accounts without court approval and provide a copy of the suspension order to all banks he does business with.

 The Court was apparently not persuaded by the macher boys-club backslappers who rose in Hank's defense:

A parade of South Florida legal heavyweights pleaded on Adorno's behalf. His supporters included former Florida Supreme Court Justice Raoul Cantero, Sanford Bohrer, a partner at Holland & Knight, and Ruden McClosky founding partner Don McClosky.

Hold on a minute -- don't the Supremes know who these people are?

Trust Me, Dan Gelber Likes Jews!

It seems every lawyer I know has been sending me emails about this scurrilous attack by Karl Rove and Citizen United's unholy love child, the "Committee for Florida's Education Inc.," that alleges Dan Gelber -- a mensch by any measure and I can vouch for this personally -- is somehow anti-Semitic.

It's too bad Dan is a down-ticket candidate in an election where a bunch of yahoos are apparently going to get elected, but this latest attack is just simply beyond the pale.

Here's an excerpt from the attachment to the email making the rounds among lawyers on Dan's behalf:

If  this “Committee” were truly interested in providing access to Jewish education for needy children, they could have accomplished that with all the money it is spending to finance these defamatory pieces.  But, of course, the purpose of these flyers is not to ensure “access to Jewish education for needy children.”   They were bought with undisclosed, anonymous money in an effort to get Senator Gelber’s opponent, Pamela Bondi elected. 

Not true, Ms. Bondi?  Then renounce these despicable practices immediately.  The Attorney General is supposed to do justice.  To allow such lies to stand unchallenged while you reap their political benefit without absorbing their taint is unworthy of a person who would presume to lead our state’s highest law enforcement office.  Your deafening silence on this issue speaks poorly for your sense of justice and your candidacy.

The more worrisome issue is what do these big money GOP guys have in mind with Ms. Bondi?

We may have the unfortunate honor in this election cycle of catapulting two Palinesqe rock stars into national orbit.

But that's why we love our silly State!

3d DCA Watch -- "I Dissent."

Ho hum, another day another time traveler in drag talking on a cell phone in a 1928 Charlie Chaplin film.

Let's jump right into the bunker, shall we, we've got a full docket today:

Greenberg v. Schindler:

Judge Trawick gets it wrong on a slip and fall:

At trial, the court excluded evidence of various reports showing prior problems with the subject escalator, and denied Greenberg’s request for a jury instruction on negligence per se. Over Greenberg’s objection and motion for mistrial, the trial court permitted defense counsel to argue there was no evidence of prior problems with the escalator.

Dr. Gart, a doctor specializing in physical medicine, rehabilitation, and pain management, testified on behalf of Greenberg. Although he is not a surgeon, Dr. Gart opined that Greenberg would require back surgery in the future. However, the trial court did not allow Dr. Gart to give his opinion regarding future surgery because he was not a surgeon.

Yeah so, what's the problem?

Master Tech v. Mastec:

A contractor doesn't want to pay its sub for satellite dish installation because it "discovered" the sub is not a licensed electrician.

Judge Salter, however, finds something fishy in Mastec-land:

[T]his case is one in which a contractor (appellee, Mastec) attempts to take financial advantage of its own subcontractor (appellant, Satellite), requiring a particularly skeptical look at Mastec’s “discovery” that its own subcontractor lacks the allegedly-necessary electrician’s license. Mastec made no showing that it had either (a) reimbursed the consumers for the services performed by Satellite but paid for through DirecTV to Mastec (attaching satellite dishes to residences and apartments, and making service calls to help DirecTV customers operate or replace their satellite television recorders and receivers), or (b) sent a licensed electrician to those homes and apartments to be certain that the work done by Satellite conformed to the allegedly-applicable codes.

Licensed electrician?  Why should that matter -- it's Miami!

Pineda v. State Farm:

Judge Schwartz dissents from a "modest" award of attorney's fees in connection with an insurance appraisal under section 627.428:

....I believe that their attorneys’ alleged efforts in the Circuit Court were (a) entirely unnecessary and gratuitous (b) resulted in no practical benefit to the client, or (c) both. In these circumstances, I do not believe that they are entitled even to the “modest” – actually minimal or nominal – award which is contemplated by the majority.

You know what, I agree.  In fact I think these lawyers ought to pay State Farm after Hurricane Wilma wrecked their clients' home and then State Farm low-balled them by $80 grand.

United Auto v. Libman:

United Auto's suit against ubiquitous PIP attorney Michael Libman revived.

This one could be serious:

Prior to the underlying lawsuit, Libman had received monies from United Auto as part of several PIP lawsuits.1 Some time after the resolution of the PIP lawsuits, United Auto filed a new and separate lawsuit against Libman alleging that its own investigation revealed false billing for tasks performed by a nonlawyer medical billing company, Continental Providers’ Services (“Continental”), improper fee-splitting with Continental after payment, and false prosecution of several PIP lawsuits without authority from the putative plaintiffs. The trial court dismissed United Auto’s complaint with prejudice on grounds that it stemmed from the PIP lawsuits and, as such, had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements. United Auto appeals the dismissal of the counts for restitution and fraud. We reverse.

I wonder if a separate suit is the right format for these types of allegations.

If the fees were awarded in a prior case, and they were allegedly improper, shouldn't you have to go back and ask that court to vacate that fee order?

Olimpia v. Preferred Care:

Judge Shepherd is his usual eloquent self in this well-reasoned and persuasive dissent, the entirety of which appears below:

SHEPHERD, J., dissenting.

I dissent.

(Note to 3d DCA webmaster -- maybe the tubes ate the good Judge's opinion?)

Bob Marley's Son Stephen Rescues Buju Banton!

Our favorite federal blogger is having a hearing today over which private security detail is acceptable for Buju Banton.  I guess the AUSA is objecting to any company that does not employ off-duty law enforcement officers.  I Scribd the motion here.

This strikes me as highly stupid, and I hope the issue gets resolved quickly.

The more interesting thing (to me anyways) is that Bob Marley's son Stephen(!) has put up his Miami-Dade house as collateral for Buju's bond:

Mr. Myrie hereby notifies the Court that Stephen Marley, well-known entertainer and son of Bob Marley, and his wife Kertia DeCosta Marley, are willing to substitute as the signator for the bond in lieu of Mr. Chavalier. His property is located in Miami-Dade county and has an approximate equity of $350,000. As evidence, Mr. Myrie will provide the Court with a recent appraisal of the residence, a title search, a copy of deed and mortgages, outstanding mortgage balances, and affidavits from Mr. Marley and his wife. AUSA Preston objects.

 The AUSA objects to this too?

I'm glad I don't do that for a living.

Miami Herald: Less Is More.

So the Miami Herald decided to scrap the business section and collapse it as an occasional part of the already-dwindling local section, thereby continuing the reductions in coverage, staffing and resources that have plagued the Herald specifically and the newspaper business as a whole for at least a decade.

That's fine if economic necessity requires it.

But why try to put lipstick on a pig (remember that insanely asinine fake media controversy from 2008)?

Just look at the facacta way the Herald describes what is a pretty simple concept -- we're eliminating the business section entirely and collapsing a piece of it into the local section twice a week, without adding any pages to the newly combined local/business section:

Here's how to find business news:  Flip the B section over.  The Business section front you're accustomed to appears on the back, and stories jump back into the B section.  Stock tables appear intact on the inside back page.

What late night bunch of potheads dreamed this one up?

(OK Garvin, fess up!)

This is the other method they suggest:

Here's the other way to find business news:  grab a pair of gravity boots.  Hanging upside down, turn to the "back" of the B section.  DO NOT FLIP THE B SECTION OVER.  This is now the "front" of the Business section.  As blood drains to your head, you will slowly lose consciousness and think this is a perfectly acceptable way to get all the latest stock updates!

BTW, congrats to new Exec Editor Aminda Marques Gonzalez.  I truly hope you can right the ship and take the Herald in a positive, successful direction.

We're rooting for you.

Law Updates for October 22, 2010

L.O., 35 FLW 2253, 4th DCA, Officer dispatched to armed robbery in progress by BOLO described suspects simply as two black males, one wearing a black shirt and shorts, and other wearing a black shirt and red pants. Did not have founded suspicion to detain juvenile, who was wearing long black shorts and a black shirt, and walking alone down the street in a black neighborhood in the middle of the afternoon, outside the perimeter of the crime scene. Juvenile not required to give his name since not lawfully detained. Error to deny JOA for Resisting Arrest without Violence.

Munoz, 35 FLW 2263, 3rd DCA, Self-defense - Trial court did not abuse discretion by prohibiting the defendant from introducing reputation evidence in the community for carrying firearms unless def could first demonstrate that, prior to the shooting, he was aware of victim reputation in the community for possessing firearms.



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

"Alas,'Twas Not To Be!"

Remember how the plaintiffs tried to cancel the evidentiary hearing before Magistrate Judge Brown?

Turns out he no likey:

Plaintiffs have been sanctioned and even held in civil contempt......Plaintiffs have been warned of the possibility of more severe sanctions.  None of these have stemmed the tide of impropriety.  The Court finds plaintiffs' continued and repetitive conduct tantamount to bad faith.  At some point, the Court will have to seriously consider the sanction of dismissal.  Although the Court announced at the hearing that sanctions would be imposed, upon further reflection, plaintiffs are entitled to "due process" on this issue.

So the judge already announced from the bench that sanctions would be imposed, finds in this Order that plaintiffs' "continued and repetitive conduct" is "tantamount to bad faith" but "upon further reflection" is going to allow some "'due process.'"

I like how "due process" is in quotes -- nice touch!

The SD FL Has A Fancy New Website!

They even have an RSS feed:

 The new website focuses on user-friendly navigation including the addition of a search function.  Some of the new features are:

Alphabetized phone directory
Searchable press releases and public notices
Link to the Federal Bureau of Prisons inmate locator
Media information page
US Courts Library page
About the US Courts
Obtaining records page
Section pages for Magistrate, Court Interpreters, Financial and Procurement
RSS feed option (this allows you to sign up to get notices for certain items on our website)
Mobile version (you can view the site via your cell phone)

RSS feed and mobile version -- I guess we're all bloggers now.

The best part is they put up a picture of a swanky new downtown hotel, complete with swaying palm trees -- take a look:

See you all poolside!

(unfortunately, contract documents specify that "Olympic-sized" swimming pool depicted in marketing materials actually oversized bathtub)

Are You a "Contract Lawyer"?

Julie Kay has a nice piece today on the growing use by firms and clients of  "contract attorneys."

How's this for an exciting job description:

Contract or temporary attorneys are hired by firms large and small for jobs as short as a day or as long as six months. Their pay is significantly lower than full-time attorneys — typically $20 to $35 an hour in South Florida — and they receive no benefits.

Their work is usually limited to document review — reading through hundreds, if not thousands, of e-mails or papers in discovery and litigation preparation.

 I can understand having to do this kind of grunt work as a young BigFirmer, cutting your teeth until you finally get to actually go to court or take a real live deposition.

But full time?  As your entire job?  Oy.

There's more:

Some firms don't like to advertise the fact that they use contract attorneys, but Gregory Young, partner-in-charge of Edwards Angell Palmer & Dodge's West Palm Beach office, said the firm has used contract attorneys for several large intellectual property cases.

"They're not engaged at strategic levels. It's more at levels that involve heavy documentation with some amount of specialization," he said.

"Law firms have really reviewed and taken steps to control expenses, and that includes the number of attorneys that are employed," Young added. "Rather than hire a lateral to take on incremental business activity, we might bring on a contract person."

Proskauer Rose also has turned to contract attorneys to reduce costs. The firm has used two or three over the last year in its Boca Raton office for document review and general litigation, said David Pratt, who heads the office.

It's interesting that 23 percent of managing partners surveyed by the DBR responded that they have hired contract lawyers.

But I wonder if Julie asked if any of these firms "upcharged" their clients for the work -- you know, paid $20 an hour for doc review, but charged the client $75 for the same billable hour.

Not that any respectable law firm would ever do anything like that, right?

Federal Prisoner Handbook | Free Download

Prison Handbook | RDAP

Federal Criminal Defense Attorney, Lawyer W.F. "Casey" Ebsary, Jr.  was researching Residential Drug Abuse Treatment Programs (RDAP). During this project I found a document that I will call a Prisoner Handbook. In it it discusses rules, regulations and procedures for inmates in federal custody. Although the manual was drafted for a Northern prison, it gives insight into what to expect while incarcerated. The manual also discusses the Residential Drug Abuse Treatment Program and its requirements:

"1. Residential drug abuse programming is available at selected Bureau of Prisons institutions. It is a course of individual and group programs provided by a team of Drug Treatment Specialists and the Drug Abuse Program Coordinator in a treatment unit set apart from the general population. 2. The RDAP runs a minimum of 500 hours over a nine to twelve month period depending on individual progression."

The Handbook is actually titled "Admission &; Orientation Federal Prison Camp." The Introduction to the handbook begins, "The Purpose of the Admissions and Orientation (A&O) Booklet is to acquaint you with the rules, expectations, and opportunities at the Federal Prison Camp. . . .The Purpose of the Admissions and Orientation (A&O) Booklet is to acquaint you with the rules, expectations, and opportunities at the Federal Prison Camp . . . ."

The manual has several pages about drug treatment and Drug Abuse Programming, noting that the RDAP Involves Three (3) Levels:

1. Drug Education Program: 10 – 15 hours course which is offered at this facility.

2. Non-residential drug treatment: Involves individual as well as group programming, also available at this facility.

3. RDAP: This is a residential drug abuse program which spans approximately nine to twelve months in duration.

Drug Treatment Questions? Call Me Toll Free 1-877-793-9290

The Federal Prison Handbook is a free download located here.

Do You Need to Subpoena A Testifying Expert for Deposition?

 Magistrate Judge Brown says yep:

Although it is true that Defendant had the right to depose Dinsmore as a testifying witness under rule 26(b)(4), Defendant may have confused this right with a party's non-existent duty to compel a nonparty deponent's attendance without a subpoena. Defendant's motion for sanctions is groundless.

This is unusual in that the parties typically agree to make their testifying experts available for deposition without formal subpoena.

But nothing in this case is typical, is it?

A Brilliant Mistake.

Wow this seems like pure unadulterated horse hockey:

A new pro-Bondi political committee has fired back, with a website accusing Gelber of down-playing his past as a criminal defense lawyer ``defending convicted drug dealers, con men and scam artists.'' The site is www.TheRealDanGelber.com .

Gelber said his work as a defense lawyer was mostly serving on a legal team at two law firms and filling in for an absent colleague in a court hearing.

Gelber does criminal defense work?

That's not an even remotely fair description.

And even if he did, why is that a bad thing?

Has Pam ever heard of the criminal justice system and the jurisprudential reasons why accused suspects are entitled to competent counsel?

Boy I'm in a fatalistic mood but I don't think this election could get any worse.

Apparently they are even after the Robed Ones up in Tally, according to this email I received from "Citizens for an Independent Judiciary":

This general election, several Florida Supreme Court Justices are on the ballot for “merit retention,” and we urge you to vote to keep them on the bench. All Florida Supreme Court Justices must appear on the ballot every six years—a process that gives the people an opportunity to vote against justices who have acted unethically.

This year, however, the justices on the ballot are being targeted for their legal opinion concerning a SINGLE issue. This is one precedent that should not be established and will lead us down a dangerous road. Don’t allow these esteemed justices to be ousted because of a single legal opinion. The simple truth is removing these justices from the bench would be a gross abuse of the merit-retention process, which is designed to oust members of the judiciary who have proven themselves unfit for office; it is never intended to be a political referendum based on a single opinion.

 Ok, I agree with all that.  There are important institutional purposes behind retaining appointed judges, even the axiomatic ones.

The email continues:

All of these justices are people of great experience, education and integrity, and they have done their best to render justice based on facts and law applicable to each case—not the popular political climate at the moment.

"Great experience, education and integrity"?

Well let's not go overboard.

Still, they are our Robed Ones and certainly deserved to be retained, particularly in the face of an ugly under the radar, highly partisan smear campaign.

You can learn about efforts to protect the independence of our judiciary from these unfair political attacks here.

Automobile Glovebox Search Thrown Out

Search Seizure Automobile

Florida Defense Attorney just received news of a Search and Seizure Automobile case where the defendant fled from police. The vehicle came to rest. The cop watched the defendant reaching towards the dashboard on the passenger side. Police ordered the defendant to show his hands and step out of the car.

The suspect was handcuffed the cops found no weapons on him. Other officers took custody of the defendant. The defendant was separated from his car, in handcuffs, under the supervision of backup officers. The traffic stop cop then seized defendant's car keys, unlocked the glove box, and found a firearm. The Second District Court ruled that the defendant's furtive movements towards the glove box did not justify a search based on officer safety. The court held that the law enforcement officer (LEO) could not have reasonably believed that he would find evidence of the defendant s fleeing and eluding in the glove box. Under Arizona v. Gant, the firearm must be suppressed. The case is attached and the firearm statute is below.


Automobile Searched? Tell me about it Toll Free 1-877-793-9290 .

790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:

(a) Convicted of a felony in the courts of this state;

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;

(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;

(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or

(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.

Source: 35 Fla. L. Weekly D533b (Fla. 2d DCA March 5, 2010) Special Thanks to Rocky Brancato, Associate Attorney Office of the Public Defender 

Resisting Officer Without Violence

843.02 Resisting officer without
violence to his or her person

Tampa Florida Criminal Defense Attorney was just reviewing a case of Resisting an Officer Without Violence.  The defendant gave a false name and date of birth DOB  to a cop. The court ruled that was insufficient to support a conviction since the defendant was not under arrest nor was the defendant being lawfully detained when he provided the false information. The defendant should have been acquitted, so says the appeals court. Motion for judgment of acquittal.(JOA) granted.

843.02 Resisting officer without violence to his or her person.

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Resisting or Not? Call me for a Free Phone Consultation 1-877-793-9290 .

Source: 35 Fla. L. Weekly D368a

SFL Friday -- People In Glass Houses.....

I'm channeling my inner proverb-spouting Magistrate Judge Goodman, but here I think it really fits:

A former colleague and one-time girlfriend now tells the Washington Post that the Supreme Court justice was "obsessed with porn" as well as the bodies of his female coworkers.

"He was always actively watching the women he worked with to see if they could be potential partners," Lillian McEwen, a former assistant U.S. attorney and one-time girlfriend of Thomas' told the newspaper. "It was a hobby of his."

Listen, everybody has a hobby -- it enriches the soul. 

Besides, whatever happened to "people in glass houses.....," "judge not lest ye be judged," and my own personal favorite, "I can Dere-lick my own balls, thank you very much."

Oh well, I'm gonna do like Ginni says and pray on it some and -- holy crap, I'm really gonna pray on it some.

Have a great weekend!

Attorney Allegedly Yells At Client at Crowded Lowe's Store

I don't recall a course in collecting monies from a client in law school, but even without instruction I'm not sure this is the right way to go about it:

Some attorneys may firmly go after their clients if owed legal fees. But angrily claiming someone is delinquent on a payment in a crowded public space?

To one local resident, that wasn’t only unacceptable, it was cause for a lawsuit.

Especially since, as a complaint filed Friday in Marion County Circuit Court alleges, Ron Butler doesn’t owe the attorney, Henry Ferro, a dime more than what he already paid him three years ago.

That amount, according to Butler’s complaint, was the flat fee of $3,500 for Ferro’s work defending Butler’s son in a 2007 criminal case. Yet Ferro allegedly believes Butler owes a significantly greater amount: $14,000. And he has been demanding payment, according to the complaint, through harassing phone calls and, most recently, in a crowded Lowe’s store in Ocala.

There was no fee agreement signed.

What's wrong with this picture? 

Shuster & Saben, LLC settles Wells Fargo Foreclosure Case with 3.125% Loan Modification

Before hiring Shuster & Saben to defend a foreclosure law suit filed against their Brevard County home our Rockeledge, Florida client all but begged Wells Fargo to modify their mortgage. The client completed a HAMP RMA (request for modification) sent Wells Fargo their bank statements and pay stubs and did everything asked of them by Wells Fargo. Ultimately Wells Fargo refused to permanently modify the client's mortgage despite the fact that the client's income qualified under HAMP guidelines. The client ultimately stopped paying their mortgage and continued to submit additional applications for loan modification. While their third application was pending the client received a notice of acceleration and ultimately a foreclosure action was filed against them. After receiving a free, no obligation consultation at the firm’s Melbourne foreclosure defense office, the client hired Shuster & Saben to defend the foreclosure action. After being hired the firm sprung into action by filing a motion to dismiss the lawsuit based on the Wells Fargo’s failure to verify the complaint and began an investigation of whether Wells Fargo violated HAMP serving guidelines by failing to modify the loan and by filing suit while a HAMP application was pending. At the first Court skirmish with Wells Fargo’s counsel, firm partner Richard Shuster, won a motion to dismiss and obtained a court order dismissing the foreclosure complaint (with leave for Wells Fargo to file an amended complaint within 20 days). ( Click here to read the Court Order ) Thereafter, Wells Fargo filed an amended complaint that was verified as required the recent amendments to Florida Rule of Civil Procedure Rule 1.110(b) which requires foreclosure complaints to be verified.

Shortly thereafter, Wells Fargo, extended a settlement offer wherein our client’s interest rate would be reduced form 6.875% to 3.125%. This modification would lower the client’s monthly mortgage payment from $1,910.47 (principal & interest without escrows) to $1,280.43 (principal & interest without escrows). With the modification our client will be able to keep and afford their home. During the next five years alone our client will save over $37,800 on their mortgage. Our clients case was resolved in under six months and as such their legal expense was a very small fraction of the amount they will save on their mortgage.

To review a copy of the loan modification agreement please click to the link below.

Loan Modification Agreement


About Shuster & Saben: Shuster & Saben is a law firm that understands the difference between Foreclosure Delay and Foreclosure Defense. We listen to our clients to understand their financial circumstances and tailor or defense strategies to achieve the clients goals. For clients that do not know what to do, we evaluate whether in makes financial sense to save their home and craft exit strategies for clients where loan modification is not a viable option. Where the lender bringing the lawsuit does not own the note or have legal standing to foreclosure we seeks the dismissal of the action against our client. We believe that banks are most likely to make offer generous settlements when they are met with a vigorous and through defense. Shuster & Saben is a firm of six lawyers with offices in Miami, Doral, Plantation / Fort Lauderdale, and Melbourne, Florida.

Law Updates for October 15, 2010

Austin, 35 FLW 2205. 1st DCA. general behavior patterns of drug trafficking - The discovery of cocaine in rental vehicle was driven by defendant and rented by wife. Error to allow highway trooper to testify that it was a practice of drug dealers to use vehicles rented in someone else's name to transport drugs. Error not harmless

Flores, 35 FLW 2209, 3rd DCA, Six year cap for VOP/VCC does not apply even when new charges are dismissed or nolle prossed - Conviction in the new case need not precede sentencing on the
probation violation as long as the court determining the violation has sufficient evidence that def committed the new offense, 4th DCA language cited in this opinion according to the 3rd DCA is dicta. see Rogers, 972/1017(4th DCA 2008)


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

I Propose That We Honor Steve Zack!

One thing I think the world could use right now, and everyone is pretty much in agreement with this, is more events honoring my buddy Steve Zack.

Did you know he's the new ABA President?

Oh I kid Steve, but seriously there is DEFCON 1 food truck-level media saturation of his laudable ABA activities and we may want to look around and see if anyone else is doing anything of any interest whatsoever.

(silence)

No?

Ok, then we better just honor Steve again.

You Hardly Talk To Me Anymore...

Meet and Confer You Dummies

When I come through the door at the end of the day.

Have you wondered how "new" Magistrate Judge Goodman is doing?

Well, he's forced to put up with this crap in addressing both parties' failure to comply with the Local Rule "meet and confer" requirements:

In order to “confer,” a movant must have a give-and-take exchange with opposing counsel. Sending an email and demanding an immediate or near-immediate response and then filing a motion before having an actual substantive discussion with opposing counsel does not amount to a conference or consultation. Instead, it is a one-way missive.

Indeed, that is a problem I have generally with people unable to have civil conversations anymore.  In order to have an actual conversation, you have to approach it from the position that your own views may be incorrect, subject to change, and that you are absolutely willing to acknowledge and hear what the other person is saying and possibly even agree with it.

This is true for both participants in a true conversation.  Otherwise you are just yelling at each other, and may as well be speaking to a wall, potted plant, or (gasp!) Glenn Garvin.

I also like the "but they did it first" defense, which the Magistrate Judge addresses appropriately:

Counsel for Royal Bahamian and QBE both violated Local Rule 7.1(a)(3). The local rule permits the Court to deny all of the motions. QBE urges me to do so (for Royal Bahamian’s motions). QBE’s counsel, who apparently does not follow one of Benjamin Franklin’s better-known proverbs, asked for this severe consequence before QBE’s own, similar violations were exposed.8

The Judge's footnote then references one of Franklin's wisest proverbs: “To lengthen thy life, lessen thy meals.”

Not sure of its relevance here, Your Honor, but I totally agree with it.

So far I'm liking this judge......

3d DCA Watch -- Down the Rabbit Hole!

 

And into the bunker, sweet Alice:

Down, down, down. Would the fall never come to an end! `I wonder how many miles I've fallen by this time?' she said aloud. `I must be getting somewhere near the centre of the earth. Let me see: that would be four thousand miles down, I think--' (for, you see, Alice had learnt several things of this sort in her lessons in the schoolroom, and though this was not a very good opportunity for showing off her knowledge, as there was no one to listen to her, still it was good practice to say it over) `--yes, that's about the right distance--but then I wonder what Latitude or Longitude I've got to?' (Alice had no idea what Latitude was, or Longitude either, but thought they were nice grand words to say.)

Presently she began again. `I wonder if I shall fall right through the earth! How funny it'll seem to come out among the people that walk with their heads downward! The Antipathies, I think--' (she was rather glad there was no one listening, this time, as it didn't sound at all the right word) `--but I shall have to ask them what the name of the country is, you know. Please, Ma'am, is this New Zealand or Australia?' (and she tried to curtsey as she spoke--fancy curtseying as you're falling through the air! Do you think you could manage it?) `And what an ignorant little girl she'll think me for asking! No, it'll never do to ask: perhaps I shall see it written up somewhere.'

Down, down, down. There was nothing else to do.....

Welcome to the wild, fantastical, technicolor world deep inside the bunker, where Resplendently Robed Ones promenade down endless halls of Sapele wood-colored concrete; where coffee is provocatively hand-swilled by handmaidens, eunuchs, and appellate counsel (sometimes all the same person!); and where statutes, rules, precedent and gut justice collide in a cacophony of axiomatic sensation climaxing in the very written utterances pulsing concentrically and blissfully out to you today:

Moffat & Nichol v. B.E.A.:

Judge Shepherd writes about being a "consensual lienholder."

I thought this kind of thing went out with Plato's Retreat and key parties?

Lewis v. Sun Time Corp.:

Can a set of stairs have a birthday?

Maybe, according to Judge Schwartz:

Plaintiff’s argument on appeal that evidence of “seventy-one (71) years without an accident, would have been too remote to be relevant” is not sensible. We are not dealing with a question of whether or not there was an accident on the stairway’s birthday in 1937, but rather evidence that there had been no accident on any of the 25,915 days—come rain or come shine—prior to June 1, 2006, when the plaintiff fell.

Also, the lack of accident history for the staircase was decidedly not a "feature" of the trial, even though defense counsel in closing called it "the most important piece of evidence in the case."

 And if you go chasing rabbits
And you know you're going to fall.....

K.R. Exchange v. Fuerst:

Judge Lagoa offers some tips for drafting a complaint:

In this case, the complaint, which purports to allege legal malpractice claims against FHI and Ittleman, fails to comply with the basic rules of pleading. The complaint consists of forty-seven numbered paragraphs containing factual allegations and legal conclusions concerning the malpractice claims against FHI and Ittleman, as well as the claims against CRA and Guido, concerning the implementation of the compliance program. The claims against the various defendants are not divided into separate counts, titled “legal malpractice” or otherwise. Instead, the complaint randomly intersperses the factual allegations and legal conclusions against FHI and Ittleman among the allegations against the other defendants without denoting the separate claims. In addition, numerous paragraphs contain allegations and legal conclusions that improperly refer to FHI and Ittleman (as well as CRA and Guido) collectively as “defendants” and do not differentiate among the various defendants’ actions and statements. Furthermore, in violation of Rule 1.110(b), the complaint improperly contains rambling allegations stating in general terms K.R.-Israel’s dissatisfaction and frustration with FHI and Ittleman’s legal performance. “To say merely that this complaint is not well pleaded is an understatement. It lacks minimal organization and coherence.” Pratus, 807 So. 2d at 796.  

When logic and proportion
Have fallen sloppy dead
And the White Knight is talking backwards
And the Red Queen's "off with her head!"
 Remember what the dormouse said;
"Feed YOUR HEAD!"
"Feed YOUR HEAD!"

The Court: (Yelling at Mr. Klock) SIT

Biased Judge Objection

I've often wondered, in the toe-tapping lawyer case before Magistrate Judge Brown, when the s%&t would hit the fan, when all hail would break loose, when the "thin veneer of civilization" (to use a favorite Edgar Rice Burroughs phrase) would lift and more primitive impulses start to emerge, overcoming the good intentions of all involved and just tearing the whole danged thing apart.

That seems to have happened with an extraordinary filing by Peter Halmos, acting pro se.  It is titled "Pro Se Plaintiff's Objections to Biased and Prejudiced Court Orders" and is sort of a greatest hits package of allegedly prejudicial quotations from Court orders, transcripts, and various accusations of judicial misconduct.

My favorite part is Peter's lengthy collection of adverse statements in Court orders, which are neatly summarized in a easy-to-read chart.  That's a must-read.

There's also an extended riff on Judge Brown not disclosing that he was an "Insurance Defense Lawyer" for more than 20 years (is that true?) and a nice set of transcripts in which Judge Brown is allegedly (and repeatedly) yelling at Pete's lawyer Joe Klock.

All in a day's work kiddies.....

Glenn Garvin Doesn't Read His Own Newspaper!

It's very hard to keep with with our local curmudgeonly TV critic cum 60s "silent majority" libertarian philosopher at large.


First he was handling the entire Herald newsroom.

Then he was apparently editing the New York Times.

Now it appears he stopped reading his own paper:

For all their frothing fulmination, neither the lawyers nor politicians nor journalists have been able to come up with any credible stories of people losing their homes despite faithfully paying their mortgages. They couldn't even find stories about people losing their homes despite being just a couple of payments behind.

That's because there aren't any.

Except the one that occupies the entire front page of today's newspaper!

Other than the fact that Glenn is completely wrong, he's totally right.

David J. Stern: Living the American Dream!

Remember the old joke about the Army -- visit exotic places, meet interesting people, and kill them?

I'm reminded of that by this in depth profile of foreclosure mill maven David J. Stern, who is ably cast by Jeff Tew as the embodiment of the American dream:

“He started from scratch and has built a wonderful legal practice and has made a lot of money,” Tew said. “That’s the American dream isn’t it?”

Hail yes!

Henry Ford dreamed of every American owning an affordable means of transport.

Thomas Edison dreamed of a America lit up from sea to shining sea in glorious technicolor.

And David apparently dreamed of a massive foreclosure factory whose primary purpose is to deprive others of their American Dream:

Hilton Wiener, a Florida attorney who has defended homeowners in foreclosure cases against Stern’s firm, described Stern’s operations as “more similar to a factory than a law firm.” The business, he said, depends on homeowners’ not contesting foreclosures so that cases can move quickly through the courts to judgment, Wiener said, basing his view on former Stern paralegals whom he has hired.

“This is like a production line,” he said. “The bank needs them to get certain results. It just becomes a foreclosure processing mill.”

And really, kids, isn't that what America is all about?

Judge Tjoflat: "I Was Wron......"

There's a surprising lack of internet information regarding Fonzie from Happy Days' inability to say "I was wrong."

Here's the best link I could come up with, which isn't much.

But if you watch the above clip starting around 1:45, you'll remember what I mean.

Anyways, Judge Tjoflat overcame his inner Fonzie and admitted he just was flat-out wrong about CAFA jurisdiction, reversing himself in a widely-criticized opinion that was the subject of much tsurris in the district courts:

There is no requirement in a class action brought originally or on removal under CAFA that any individual plaintiff’s claim exceed $75,000.

 There, was that so hard?


"These days are yours and mine, Happy Days!"

"Taj Mahal" Courthouse Built At Bunker's Expense?

The scandal involving the 1st DCA's "Taj Mahal" courthouse continues, as politicians and administrators play political football in light of Alex Sink's recent audit.

The latest pushback is from the head of the state agency in charge of the construction of state buildings, Linda South, who says basically that the 1st DCA judges constantly meddled with the project:

She said there was a point, early enough in the project, to "put a fence around the design of the courthouse."

Her agency is supposed to be in charge of constructing state buildings, but e-mails show that the DMS and the judges struggled over control. South replaced one agency architect with another after the first one clashed with the judges over control.

The judges wanted veto power over anything the DMS did, a point South refused to concede, though the DMS agreed to notify the judges of everything.

First District Court Judge Paul M. Hawkes, chairman of the court's building committee, objected when he felt the court was not included in even the smallest details.

"We are under the impression that there have been communications where we were not included," Hawkes wrote in a 2007 e-mail. " … We feel it is essential that NO communications occur about this project without us being included."

In February 2008, the judges insisted on firing Tallahassee architects Barnett Fronczak Barlowe because the firm refused to design a building that would cost more than the state had budgeted.

"The judges were unhappy; they wanted more building than they had money to spend," South recalled.

The judges wanted a building with "wow" factor — "worthy of the court and its functions," according to 2007 notes taken by Hawkes' law clerk of early meetings between the architects and judges.

Chris Kise, attorney for Gov. Charlie Crist, attended one meeting and warned the judges that the governor and Legislature supported "a nice courtly facility but not at the expense of the four other DCAs and the Supreme Court," where there are older facilities.

We may have a little fun from time to time with the bunker by the highway, and there may not be miles of Sapele-wood, flat-screen TVs or gleaming granite countertops, but let me assure you -- our concrete center of justice is completely state of the art.*


* state of art circa 1974, aka the "Reubin Askew" Florida style manual

Let me ask another question -- why does a courthouse need a "wow" factor?

Whose ego is stoked by such a thing?

As a litigant, I'm perfectly happy with a "nice courtly facility," what's so wrong with that?

(BTW, when we can we get a nice courtly facility?)

Criminal Defense | Florida Database

Criminal Defense Database

Florida Criminal Defense Expert has launched two services to allow free search of his Florida DUI and Florida Drug Charges databases. Today we are going live with a third searchable database for other types of state and federal criminal charges including computer-related legal subjects - Go2Attorney.com .

The new FREE resource for criminal defense and computer legal Information uses  the fast convenient Google Search Bar that is also located on the top of this page.

A Service of Criminal Defense Attorney Tampa Florida Lawyer W.F. "Casey" Ebsary, Jr. Whether you are a citizen, lawyer, Judge, or attorney you may find this cache of Florida Criminal Defense News and Information useful.You will find hundreds of pages authored by a veteran Criminal Defense Attorney fully searchable using Google Search.

If you do not find what you are looking for, call today at 1-877-793-9290 .

Is Glenn Garvin Now Editing the New York Times?

We've seen what happens when Glenn Garvin takes over an entire newspaper.

But Garvin's appetite, not sated, has apparently led him to edit stories for the Grey Lady herself.

How else to explain this whopper from an otherwise superlative article on the foreclosure mills that infest our state:

In an interview last month, Mr. Stern, the Florida lawyer, accused Mr. McCollum, who is standing for re-election as attorney general, of political motives in opening the inquiry into his firm and others.

Come home Glenn, we're sorry, you were right about Nixon and the Half Hour New Hour, just come on home.....

SFL Friday -- He Went Out Ant-Hunting With His Elephant and Gun....

I can't believe we made it to Friday.

Let's get right to it:

I Scribd this so you can click on the link, but Magistrate Judge Brown has scheduled a hearing on whether or not the plaintiffs in the toe-tapping lawyer case can unilaterally cancel a Court-ordered hearing.

Can this get any better?

(I'm thinking YES IT CAN)

Here's a highlight:

Plaintiffs are completely disingenuous when they claim they will not waive any matter that is properly before the jury ... they already have!

Unfortunately, plaintiffs wish to "kill an ant with an elephant". The real issue is the scope of the hearing. Filings of proposed testimony to be offered by defendant (which may or may not be allowed at the hearing) do not change the scope of the hearing. It will be governed by the Joint Motion of the parties (D.E. 698) and subsequent Order of the Court (D.E. 706). In large part, plaintiffs are correct -the hearing is to resolve question(s) surrounding the documentation supporting claims. Defendant will not be permitted to take a position at this hearing that it has not taken prior to the filing of the Joint Motion. However, the task of determining whether the items at issue are covered under the policy clearly is an issue at this hearing. Undoubtably, plaintiffs have understood this all along. See, e.g, D.E. 964.

Ok, sounds like the Court has already determined the issue -- so why is there a half-hour hearing on the hearing again?

In other news, you need to be at the right place at the right time, oy with this Carl Paladino, and salt turns out to be good for you.

Have a great weekend!