It's a special day inside the bunker, as the denizens get in the All Hallow's Eve spirit by swilling dark red "blood" coffee, munching on bowls of "eyeball" candy, and dressing up as their favorite Supreme Court Justice (guess who wore the Scalia mask this year, again!).
Me, I'm in my usual costume -- a full body suit composed of whole wheat pasta bolognaise -- sure it takes a lot of work and gets a little sticky by the end of the day but you never know, this might be the year it all comes together!
Let's dig into these truly spooktackular opinions:
One thing I love about state court is you can literally title your motion any way you want -- the more elaborate and specific and pejorative the better -- like this epic ex parte“Motion for Order Approving Settlement and to Enjoin One of the Potential Beneficiaries from Interfering with the Administration of [the] Probate [Estate] and from Taking Action Contrary to the Personal Representative’s Authority.”
With a title like that, what's left to put in the motion?
As far as I can tell, this is a case about whether telephone carriers should have to disburse to customers fees they collected pursuant to a FCC requirement imposed upon the carriers that has since been held illegal.
But Judge Carnes has bigger donkey hides to fry:
That is the motivating issue in this case, but it is not the specific question presented by this appeal. Instead, the question we have is whether the district court has subject matter jurisdiction to decide that issue. In answering that question, we are reminded of Justice Holmes’ view about the comparative difficulty of deciding cases. He said that “when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.” In our experience that view is not always accurate, but it is here. The best way for us to get the hide off the lion in this case is to summarize the applicable law, including the relevant FCC orders, before setting out the procedural history and facts. Be forewarned that there is a lot of hide.
ba-dum-tshh!
At this point the 11th should just start embedding a "rim shot app" so you can appreciate these opinions in all their glory.
Boca Raton-based Rutherford Mulhall laid off most of its attorneys and staff and is planning to dissolve the 22-year-old law firm, sources familiar with the situation said Monday.
The firm has been on a slide for several years, closing offices in Fort Lauderdale, Plantation, West Palm Beach and last month, in Palm Beach Gardens.
Excuse me dear Julie, but in the law biz we don't call that "a slide" -- we call it "consolidation."
2. The friendly folks at the SD FL website have put together a nice Q&A on how to redact docs properly:
Probably the most effective means is to (a) use opaque (100% impenetrable by light) tape/ paper to cover the information to be redacted; or (b) literally cut-out text to be redacted – from a copy, not the original – and shred the clippings.
Ok, I became a lawyer because I am terrible at arts and crafts -- can I ask my nanny to help?
3. Rick "Rick" Yabor advises his client to take the 5th:
"On counsel’s advice, I invoke my rights under the Fifth Amendment of the Constitution of the United States not to answer or submit the information requested on FEC Form 3, on the grounds that I may incriminate myself," Justin Lamar Sternad wrote Oct. 19 in a just-posted letter to the Federal Elections Commission.
"Please refer all additional inquires to my attorney, Rick L. Yabor."
Yabor declined comment, citing the pending FEC investigation.
Questions from the FEC were bound to arise after Sternad filed 17 blank pages as his campaign close-out report for October.
Au contraire Marc -- maybe those 17 pages are not in fact blank -- perhaps Sternad simply "use[d] opaque (100% impenetrable by light) tape/ paper to cover the information" that he filed?
ad more here: http://www.miamiherald.com/2012/10/29/3073381/justin-lamar-sternad-invokes-fifth.html#storylink=cpy
So armies of volunteer lawyers, well-trained by the beardless bow-tied one, are out and about this week at early voting locations trying to encourage potential voters to stick it through, wait it out, and fill out the five-page double-sided ballot(!) that closely resembles my law school Con Law I exam.
Ain't democracy grand?
Yesterday I saw my pal Bob Fiore exercising his right to vote, dressed snazzily in a guayabera, and in fact everyone should early vote to relieve pressure on election day.
The Herald's Marc Caputo thinks proof of long lines at early voting sites that have reduced hours of operation means it was all "liberal spin" about GOP voter suppression efforts:
But the evidence of the longer, stronger lines also conflicts with a talking point from liberals: That the Legislature engaged in “voter suppression” by reducing the number of early-voting days from 14 to eight.
Is that really what you think a long line means?
When you have to wait 45 minutes in line at Kmart and there are only two lanes open do you surmise that people just must really love Kmart?
(Marc's solution -- just buy online!)
Seriously, though -- congrats to all the volunteers helping to ensure the vote is fair and accurate -- we all owe you a debt of gratitude.
Read more here: http://www.miamiherald.com/2012/10/28/3071749_early-vote-figures-dont-lie-but.html#storylink=addthis#storylink=cpy
The First District Court of Appeal reversed today in Champion v. Champion, a post-judgment case in which the trial court approved a Magistrate’s report without holding a hearing. However, rather than reversal for not holding a hearing, the First District Court was compelled to reverse because there was not even an Order of Referral directing the Magistrate to hear the matter in the first place.
Finally Judge King gets affirmed in a Checking Overdraft arbitration decision, this time in a situation where the bank did not move to compel arbitration until after the Supreme Court's Concepcion opinion:
The district court twice invited Wells Fargo to move to compel arbitration, first in November 2009 and again in April 2010, but Wells Fargo declined those invitations. A year later, Wells Fargo reversed course and moved to compel arbitration soon after the Supreme Court held in AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740, 1753 (2011), that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., preempts state laws that condition the enforceability of consumer arbitration agreements on the availability of classwide procedures. The district court denied the motion based on waiver. Wells Fargo argues that it did not waive its right to compel arbitration because it would have been futile to move to compel arbitration before the Supreme Court decided Concepcion. But we conclude that Concepcion established no new law. Because we conclude that it would not have been futile for Wells Fargo to argue that the Act preempts any state laws that purported to make the classwide arbitration provisions unenforceable, we affirm the denial of its motion to compel arbitration.
Oops!
Hopefully the decision to not seek arbitration was made by Wells Fargo's in house counsel.
As many of you know, this morning the Attorney Breakfast Club met at the Hotel Urbano for a spirited discussion and some day-old bagels (stop complaining, they're just as good the next day!).
Thanks to a tipster, we are able to bring you exclusive footage from one of the many distinguished speakers, please take a look at what you're missing:
I'm more of an ACS kind of guy, but I do have to give the Federalist Society props for their own integrity in knocking down this ludicrous campaign to remove Justices Quince, Lewis, and Pariente:
A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.Download Federalist Society
“There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,’’ wrote Florida International University law professor Elizabeth Price Foley after analyzing nine controversial cases since 2000. “There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled.”
Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.” Opponents who want to accuse them of judicial activism, she said, are “going to have a hard time making that label stick.’’
Oh don't be so sure, Professor -- since when have facts stopped the Koch brothers?
In short, Defendant acknowledges using Plaintiff's copyrighted picture without Plaintiff's consent, but argues that she was not liable under copyright's fair use doctrine. The Court, being fully briefed on the matter, finds that Plaintiff has adequately stated a prima facie case of copyright infringement; on these facts and filings, Defendant's fair use defense is not appropriate for determination on a motion to dismiss. Accordingly, Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be denied.
In other words, the fair use doctrine defense will have to be decided on summary judgment:
Here, Defendant alleges that her use of the Image was not for parody but for news reporting and commentary. (DE #14, p. 10). Though news reporting and commentary lend themselves to fair uses, see 17 U.S.C. sec. 107, such a determination is far from automatic and is more appropriately resolved after the complaint has been answered and parties have evaluated any need for discovery.
But if the Image and the posts in which it appears are in the complaint, what further discovery would be needed?
If they are not, perhaps put them in the answer and move for judgment on the pleadings?
The Fourth District Court of Appeal ruled today in McPherson v. Bittner, a case in which the appellant challenged the lower court’s award of fees to the Appellee. In a previous appeal, the same Appellant had already challenged the lower court’s grant of fees in the underlying action, and that appeal resulted in affirmation, as well as an order finding entitlement to appellate fees. The Appellant now appealed the subsequent order granting those fees from the lower court. The Fourth District rejected the appeal, finding that entitlement was already the law of the case, and no material change was offered. Of note is Judge Warner’s special concurrence, in which she primarily addresses the Appellant’s repeated contention that appellate fees are not authorized in paternity actions , and makes a case that the Court should recede from Gilbertson v. Boggs, 743 So.2d 123, 128-9 (Fla. 4th DCA 1999) to find that 742.045 contemplates appellate fees. It is hard to find fault with Judge Warner’s comparison of the two plus decades of statutory interpretation of F.S. 61.16 and the interpretation of the nearly identical F.S. 742.045.
Hi kids, the Robed Ones are busy getting the bunker ready for Judge Logue's investiture on Friday (making sure the bathroom sinks are tightly bolted to the walls, polishing the concrete furniture, that sort of thing), so the opinions are a bit sparse today.
Here Judge Salter has to determine whether there is sufficient nexus between the plaintiff's claims against the defendants and condo units owned by them in order to uphold an order refusing to dissolve a lis pendens.
The first clue -- be careful in your captions:
While captions are not controlling, they occasionally provide a strong hint—here, for example, a hint that the action seeks money, not the imposition of a lien or injunction relating to specifically-identified condominium units.
The second clue: it just doesn't feel like enough of a nexus:
Whatever a nexus with specific Florida real estate may be, this is not it.
Spencer's Attorney Breakfast Club may need to keep an extra supply of Maalox ("It's a Relief to Enjoy Life!") around as noted attorney malpractice expert Warren Trazenfeld gives everyone the willies as he explains how to avoid getting sued by your clients.
Here's my list:
1. Never take on clients; 2. Never put funds in or remove funds from a trust account; 3. Never file anything (alternatively -- file everything); and 4. Hide in closet until things blow over and/or the phone stops ringing.
Warren probably has a few more ideas so you may want to check out Friday's presentation.
Paul Huck Jr., the husband and son of judges, has joined Hunton & Williams as a partner in the Miami office.
Huck, a litigator, worked at Colson Hicks Eidson in Coral Gables for four years and served as general counsel to then-Governor Charlie Crist from 2007 to 2008.
Huck said he was looking to join a national law firm to expand his commercial litigation and attorney general investigation practice. He represents clients who are being investigated by the Florida attorney general’s office on civil matters.
“I was looking for a firm with a national footprint,” he said.
Note to managing partners -- this is how you gracefully handle a lawyer departure:
“Hunton & Williams is fortunate that he has joined,” Dean Colson, managing partner at Colson Hicks Eidson said in a statement Monday. “We know that Paul will continue to be very successful, and we wish him nothing but the best.”
The decision of the district court is affirmed by an evenly divided court. The opinion of the panel remains vacated. United States v. Geders, 585 F.2d 1303, 1306 (5th Cir. 1978) (en banc) (“[T]he court en banc is evenly divided; therefore the judgment . . . of the district court is affirmed by operation of law.”); see id. (indicating that, if district court judgment is affirmed by operation of law, the panel opinion remains vacated); see also Reshard v. Britt, 839 F.2d 1499 (11th Cir. 1988); United States v. Sigma, Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc) (noting that when panel opinions are vacated they “are officially gone,” and “are void,” and none of the statements made in them “has any remaining force and cannot be considered to express the view of this Court.”).
Sorry panel, your opinion has been officially vaporized!
The Archdiocese of Miami and Archbishop Wenski have filed a lawsuit in Miami federal court challenging Obamacare's contraceptive care provisions:
"I am defending religious freedom for the Catholic Church and its many ministries," said Wenski in a news conference at the Pastoral Center in Miami Shores, hub for the Archdiocese of Miami. "The mandate jeopardizes our freedom to serve in a way congruent to our consciences and the moral teachings of our faith."
The case is pending before Judge Graham, and the Church is represented by Roberto Javier Diaz of J. Patrick Fitzgerald and Associates, P.A., in the Gables.
Patty Fitzgerald?
Great name for a case like this!
The complaint is a very interesting read too, including passages you don't normally see too often, such as this one:
Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic beliefs. Among those beliefs is the requirement to serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict recently put it, “love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006).
Wow, how do you bluebook the Pope?
(I guess if he says it is correct, you can probably stop there.)
We've written at length about Judge Carnes' predilection for a strong "cold opening" to his opinions, frequently drawing from history, literature, pop music, and even beloved children's stories.
Not to be outdone, Judge Jordan tries his hand with an always-in-style Abe Lincoln reference:
Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary.
Ok, not bad for a first try -- this one actually fits.
Roughly translated, I believe the Judge is saying: "Ms. Harkins, you are no Abe Lincoln."
And by e-discovery nerds, I mean specifically John Barkett, who wrote a thoughtful piece not long ago for the DBR on whether electronic databases and the like can be taxed as costs under Section 1920(4) as the "exemplification of....materials."
Moreover, it is the opinion of this Court that, as noted above, Congress's amendment of Section 1920(4) did not expand taxable costs beyond digital copying to the creation of new, modified, or enhanced digital files. A prevailing party may tax the costs of making digital copies, but Section 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable.'' Race Tires, 674 F.3d at 169. A holding to the contrary would be "untethered from the statutory mooring,'' id , and would muddy the distinction between taxable costs, which are generally available to the prevailing party, and attorneys fees, which generally are not available under absent a fee-shifting agreement or statute.
He even added some policy grounds!
John if you're reading this we'd be most appreciative of your insights on Judge King's opinion (we basically have none).
The Fourth District Court of Appeal affirmed yesterday in Whelpley v. Whelpley, a case in which the Appellant sought to prove error on the face of the Final Judgment due to the absence of a transcript. While the Court initially found confusion in the award of bridge-the-gap alimony for a three year duration, on review of the Judgment it became clear that the actual award was one for rehabilitative alimony, after presentation of a plan for rehabilitation, and was as such affirmed.
Alan J. Kluger's 32-lawyer South Florida law firm falls into that category. Kluger, a founding partner of Kluger, Kaplan, Silverman, Katzen & Levine, said the firm has a sizable line of credit from its bank, Sabadell United Bank in Miami, that goes unused. "They gave us a really big line. We have not ever taken a penny on it," Kruger said, citing solid cash flow from operations.
Exactly!
Who needs a big line when you can just unload a spare Dutch Master?
Ok, let's do some butt bunker bingo!
(I have no idea what that means.)
So one of the Fowler Whites represented somebody in a maritime case, Judge Graham entered some orders, they were affirmed on appeal, then the Judge apparently changed his mind and the client somehow got damaged.
In the instant matter, Hanson lost in federal court on remand not because of any tactical decisions on his lawyer’s part, but because the District Court inexplicably refused to rely upon a prior ruling on an issue that had been raised by the parties, tried by consent at a bench trial, and left untouched by the appellate court. Thus, in this case, no tactical decision and therefore no judgmental immunity are involved. That being said, we nonetheless find that the lawyer and his firm are entitled to a judgment in their favor as a matter of law.
But Judge Schwartz in dissent says an inexplicable legal ruling is not an intervening cause for a malpractice case:
In this case, in which, depending on how one likes to put it, the ultimate catastrophe has occurred or the worst case scenario has played itself out in the loss of an otherwise meritorious and valuable position, presents an a fortiori situation. For these reasons, I believe that the wrong party won this case.
(I admit I don't understand that sentence but I think it means the negligence claim should proceed.)
I'm not sure why they waited so long to get their side of the story out on the table, but in both the state court proceedings and in federal court, Lewis Tein has moved for sanctions against the Miccosukee Tribe and their new counsel.
The following four facts are relevant to considering the instant Rule 11 issue:
a. The Tribe maintains that its current chairman has no personal knowledge of the fraud allegations against Lewis Tein.
b. The Tribe's current vice-chairman testified that he knew of no facts supporting the Tribe's allegations of fraud against Lewis Tein.
c. In the Bermudez Case, the Tribe's attorney testified that he conducted no investigation to support the Tribe's accusations of fraud against Lewis Tein.
d. In the Florida RICO Case, the Tribe has refused to produce a single document or witness to support of its allegations of RICO and fraud against Lewis Tein.
The foregoing facts, combined with the absence of any evidence against Lewis Tein, establish that the Tribe's lawsuit was filed in bad faith and for improper purposes. Knowing there is no evidence, the Tribe and its lawyer continue to pursue this action.
They also have new counsel (artist's rendering below):
I'm sure everyone will be nice and respectful in comments.
Gleason has identified no authority supporting his contention that the First Amendment shields from sanctions an attorney who files an inappropriate and unprofessional pleading and then contacts a presiding judge ex parte with an offer to share a bottle of wine and “privately” resolve their dispute. When an attorney files inappropriate and unprofessional documents, a court may impose sanctions based on its “inherent power to oversee attorneys practicing before it.” Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir. 2002) (upholding a district court’s decision to sanction an attorney who submitted documents containing personal attacks on opposing counsel).
In the present case, the bankruptcy court found that Gleason’s written submissions to the court and sending a judge a bottle of wine with an offer to resolve their differences privately amounted to “sanctionable professional misconduct.”
Oh well, I hope somebody drank it, a nice bottle of wine is a terrible thing to waste.
It feels as if I've written about this case before, but today the 11th Circuit affirmed Judge Gold's refusal to quash IRS subpoenas to the tribe's banks and financial institutions.
Here's what Judge Pryor had to say about tribal immunity:
The claim to tribal sovereign immunity here fails for two reasons. First, the summonses are not suits against the Tribe. Second, tribal sovereign immunity cannot bar a suit by the United States.
The first point seems hypertechnical, but the second point really closes the door on the doctrine when you're dealing with the US government:
The Supreme Court has described tribal sovereign immunity as having passed to the United States to be held for the benefit of the tribes, much like the tribal lands. United States v. U.S. Fidelity & Guar. Co., 309 U.S. 506, 512, 60 S. Ct. 653, 656 (1940). Indian tribes may not rely on tribal sovereign immunity to bar a suit by a superior sovereign.
And we know what happened to the tribal lands.
Query if this decision will impact the ongoing dispute between the tribe and its former lawyers?
When the Foreclosure mill law firm David Stern, P.A. collapsed many lawyers who defend foreclosures were content to sit on their hands and wait six months to a year for the banks suing their clients to send the files to other law firms.Of course Shuster & Saben is NOTlike most firms that defend foreclosures.Firm attorney Richard Shuster saw the collapse of David Stern as an opportunity to cut offthe head of a sleeping snake.
After the Stern firm failed to respond to requests for admission served by Shuster on behalf of a foreclosure defense client, Shuster filed a motion for summary judgment in favor of the homeowner.The Stern firm did not withdraw form the case and Wells Fargo did not assign the case to new counsel.Shuster then set a hearing on the motion for summary judgment.
Despite their receipt of the notice of hearing, David Stern did not have an attorney present at the hearing.When the judge called the firm to allow them to attend the hearing by phone the lawyer who the receptionist directed the Judges call to did not take the Court’s call.Since Wells Fargo's lawyers ( David Sern, P.A.) failed to respond to requests for admission that Wells Fargo did not own the note and a request for admission that Wells Fargo did not hold the note summary judgment and final judgment were entered in favor of the homeowner.After the win the foreclosure defense attorney Richard Shuster filed a motion for attorney’s fees.
Shuster was concerned if the firm immediately sought to collect attorney’s fees Wells Fargo might move for relief from the judgment arguing that they accidentally failed to send the file to new counsel.As such Shuster waited one year from the date of judgment so that the time for Wells Fargo to seek relief form judgment ( 1 year under the rule) expired.Once the time for Wells Fargo to seek relief from judgment expired the firm went forward with its motion for attorney’s fees.Wells Fargo’s new lawyers, Aldridge Conners argued that the homeowner should not be entitled to attorney’s fees.This argument was rejected by the Court which found for the Defendant on attorney fee entitlement.The day before the hearing on the amount of attorney’s fees Wells Fargo and their new counsel agreed to pay $17,500.00 to resolve the attorney fee claim.Our client not only won their case ( a final judgment win not a mere dismissal ) get money back from the fees recovered from Wells Fargo.
The Fifth District Court of Appeal ruled today in Gibson v. Gibson, agreeing with the Former Wife that reversal was required on two points. First and foremost, despite finding that alimony was needed and appropriate, and despite the parties’ having agreed to an alimony award, the lower tribunal neither awarded alimony or explained why not. The Fifth District reversed on this point assuming it was an oversight by the lower court. In addition, the final judgment contains instructions requiring that the Former Wife be permitted to keep the home and the debt upon it as her own asset free and clear, and yet also requiring the sale of the home at the termination of an exclusive possession award and the division of the proceeds. Again, assuming error, the Fifth District Court reversed.
The First District Court of Appeal affirmed today in Van Looven v. Van Looven, a case in which the Former Husband appealed the lower court’s dismissal of his petition to modify child support after repeated failures to allege a substantial change in circumstances. The Former Husband argued that it was sufficient to argue that the modification was in the best interests of the children. However, the First District relied upon Florida Statute 61.14(1)(a) (2010) in finding that such an argument could not be sustained. In short, the root of the confusion was with the Overbey v. Overbey, 689 So.2d 811, 813 (Fla. 1997) ruling. That ruling centered around the bases on which a court could change child support, and includes in the permissible scope of a such an order a need to modify child support in the best interests of the child. However, the same case confirms that for a party to request a modification, they are still required to show a substantial change. As such, the dismissal was affirmed.
The First District Court of Appeal ruled today in Bateh v. Bateh, a case in which the Former Wife raised a number of issues on appeal. First and foremost, the Former Wife argued that the trial court erred in declining to find that the Former Husband had dissipated marital assets. The First District Court, however, found ample evidence in the record to contradict this assertion, in that the Former Husband’s dental practice was clearly in dire straits, and his attempts to save it did not constitute dissipation. The Former Wife also, however, raised the lower court’s failure to distribute approximately $30,000.00 in furnishings purchased by the Former Husband for a rental home he occupied during the parties’ separation, and reversal was required on that point. In addition, the Former Wife argued that the lower court erred in failing to address a post-filing check from the Former Husband to a family member, and on remand the lower court was instructed to address this issue. The First District also reversed as requested by the Former Wife on the grounds that the car found to be the joint property of the adult children was not valued and assigned. And, finally, the Court agreed that reversal was required due to the lower court’s failure to include in its Final Judgment a determination of the nature of the Former Wife’s actual need for alimony when awarding only nominal alimony which did not meet the need.
A Guatemalan teenager who came to the United States with his parents when he was 11 is attending a magnet high school focusing on law studies and dreams of becoming a Drug Enforcement Administration agent.
He is a senior at the Law Enforcement Officers Memorial High School in Miami and seeking admission to West Point.
But because of his status as an undocumented immigrant, he has been unable to take any jobs and faces other limitations as a noncitizen.
To help children and young adults like him, Florida International University College of Law has joined forces with the law schools at the University of Miami and St. Thomas University to handle applications under a change in immigration policy by President Barack Obama. The Deferred Action for Childhood Arrivals program allows the deferral of removal for immigrant students and young adults.
Call me crazy, but don't you just love stories like this?
Make no mistake. It’s not just about the Florida Supreme Court justices and appellate court judges on the ballot. It’s much bigger than that. The integrity of the entire judicial branch — and therefore, the overall balance of our state’s government — is in play.
Look at it this way: Will Florida Supreme Court Justices and appellate court judges in the future hesitate to make difficult decisions that they believe are required of them if their colleagues have been voted out of office for doing just that?
You be the judge.
Not bad, Your Honor -- and already a huge improvement on Garvin!
Finally, this guy is building a practice focusing exclusively on e-discovery:
Teppler is now going where few other attorneys on the Gulf Coast are, by hyper-focusing his practice on a rare new section of the law: electronic discovery. The concentration isn’t only counterintuitive. It’s also timely, in that the Florida Supreme Court recently adopted seven new rules of civil procedure specific to electronic data discovery in state courts.
The rules are supposed to make the e-discovery process clearer, more specific and more efficient. The rules, which also spell out how judges can sanction attorneys in e-discovery matters, were adopted in July and went into effect Sept. 1.
The trick now is to ensure attorneys, and by extension, their clients, are fully aware of the changes. “There are some landmines (in e-discovery) that can trip up attorneys, to the detriment of clients,” Teppler says. “Attorneys know how to handle technology — kind of. But when it comes to litigation, they are at a disadvantage.”
Right, like I had to ask my kid last night how to change my default settings in iTunes. He told me to stick my metadata where the sun don't shine. The children really are our future!
more here: http://www.miamiherald.com/2012/10/11/3045785_p2/in-florida-separation-of-powers.html#storylink=cpy
What happens when a "pro se" plaintiff dazzles you with her legal acumen and drafting brilliance?
Why of course you cry foul and accuse the pro se scribe of having a secret Christopher Marlowe:
Defendants filed their Motion asserting that it is “manifestly apparent” that an “unknown attorney” is purporting to sign and file pleadings under pro se Plaintiff’s name. According to Defendants, this “unknown attorney” is acting in such a manner to avoid the attorney admission requirements of this Court. Defendants support their assertion by claiming that the number of Plaintiff’s filings “is typical of an established law firm” and that Plaintiff’s pleadings “assert sophisticated legal positions [and], cite legal precedent and Court rules in support of such positions,” and thus “reflect the work product of a trained legal professional, or someone working under the supervision of a trained legal professional (e.g. law student, paralegal or junior associate attorney).” D.E. 125 at 5. Defendants request that this Court dismiss Plaintiff’s Complaint on the basis of this so-called fraud.
So the "evidence" consists of quality legal writing and knowledge of legal precedent and Court rules?
The competent quality of a party’s pleadings is not a basis for striking them. Defendants have offered no evidence that indicates someone other than Plaintiff has been filing documents on his behalf, and except for the lone mention of a law firm during discovery, Defendants have offered no evidence that Plaintiff is even in contact with someone who is providing him with legal advice. Nevertheless, assuming for the sake of argument that Plaintiff is receiving legal advice (which by itself violates no rule), no one but Plaintiff has entered an appearance in this Court on Plaintiff’s behalf. Therefore, Rule 4 of the Special Rules Governing the Admission and Practice of Attorneys of the Local Rules of this Court is inapplicable. And in any event, Rule 4 does not provide the basis for dismissing a complaint. At most, it creates an issue for the bar regulating the alleged covertly practicing attorney. There is certainly nothing here that requires, let alone permits, this Court to dismiss Plaintiff’s case based on Defendants’ respect for the quality of Plaintiff’s briefs.
This seems somewhat obvious, don't you think?
It'd be interesting to assert the opposite -- that the shoddy quality of opposing counsel's work clearly proves that it is being ghost-written by an untrained, unwashed nudnick.
The First District Court of Appeal ruled today in Johns v. Johns, a case in which the Appellant’s adult son was granted an injunction under Florida Statute 741.20 (2011) against the Appellant without the benefit of a full evidentiary hearing. Instead, the trial court conducted questioning at an informal hearing at which only the Appellee was given an opportunity to present witnesses and testify. The Appellant was allowed to present some evidence, but was not questioned by the lower court as to the allegations in the petition. Based on this, and the seriousness of the possible penalties faced by the Appellant, the injunction was reversed with a full evidentiary hearing required on remand.
Ok, so a nice disabled widow in upstate New York got cold-called by a Lake Worth Ponzi outfit selling mostly non-existent "precious metals" and wound up handing over her a chunk of her retirement to these sleaze balls.
Don't you just love America?
After the Ponzi scheme collapsed, the creditors designated a specialist to liquidate the few actual assets of the company, including some precious metals much like those promised but never delivered to the poor widow.
There is no bailment implied-in-fact in this case. Although Ms. O’Brien insists that the silver was set aside for her, there is no record evidence to support this contention. There is also no evidence that 1,000 ounces were purchased with her funds or segregated as her separate property. None of the bailment elements exist here.
The Judge concludes by lamenting one of Florida's most treasured and historic features -- con artists:
This fraudulent scheme apparently escaped, at least for a time, the attention of the federal and state authorities regulating commodities trading and the exploitation of consumers like Ms. O’Brien. Ponzi schemes seem to recur again and again in South Florida, sometimes involving diamonds, sometimes oil, and in this case, gold, palladium, and silver. The names of the scams seem to be endless permutations of “gold bullion,” “international,” “global,” “diversified,” and “precious.” The common denominator is that the commodities are imaginary, or are the undivided “property” of a host of victims, not any one of them. The circuit court properly authorized the sale of the silver by Mr. Stermer, and at this point Ms. O’Brien can only hope that the process of liquidation will yield some net recovery on her claim.
A classic "hold-your-noser," albeit much more eloquently expressed.
The Second District Court of Appeal affirmed today in Franklin v. Patterson-Franklin, a case centering around a QDRO dividing the marital portion of the Former Husband’s employee stock ownership plan. While the Second District acknowledged that there were multiple mathematical errors in the QDRO, the largest of which gave the Former Wife a thirty-two thousand dollar plus windfall in her favor. Unfortunately, however, as neither party caught the mistake in time for rehearing or an appeal of the Final Judgment, the argument was raised for the first time on appeal of the QDRO, and therefore rejected. In a happy coincidence of tipsy coachman-hood, however, a second error resulted in the accidental attribution of an additional thirty-two thousand dollars in debt to the Former Wife she should not have been assigned. Again, this issue was never raised in a timely fashion, meaning that the errors cancel each other out, for the most part.
I know I know it's now Wednesday, but those sneaky coffee-swillers got together and decided to pull a fast one on us yesterday, knowing that nobody in their right mind pays any attention to the bunker except on hump day:
Hey, what do you know -- Judge Logue wrote an opinion!
BTW, his induction is set for October 26 at 3 p.m -- I'm sure everybody got the letter asking for sponsorships. (I got naming rights to the broken Total Gym 3000!!)
Of course I kid -- we're actually happy about this choice and think he'll do a great job.
However, you can tell he's still new -- he didn't rule in favor of Laurie Waldman Ross. How could that have happened?
Interesting legal issue, too -- how do you get appellate review on a motion to stay when the trial judge won't rule on the motion?
You apparently need to nudge the trial judge really hard:
Sunbeam asks us to rule on its stay request, based on the assertion that the stay request should be treated as denied because the trial court has not ruled on the request. Sunbeam asserts in the alternative that, because the trial court has yet to rule on its stay request, we should issue a writ of mandamus ordering the trial court to do so. We decline either alternative because the record reflects that Sunbeam still has avenues available to it to get this matter before the trial judge.1
Oh and here's footnote 1:
For example, Sunbeam could hire an actor to dress like Shakespeare and endlessly recite the motion out loud in an exaggerated acterly British accent during motion calendar. Sunbeam could have Joe Matthews parachute over the courthouse and hand the judge a copy of the motion as he lands ever so gently on Judge Bailey's desk. Sunbeam could surreptitiously rearrange the magnet letters on Judge Bailey's fridge to simply say "RULE NOW."
The third example brings up a terrific war story, though I've been enjoined from discussing it further until at least 2025.
Sorry to keep beating the drum about this issue, but when you read a report like this from the NYT it just ticks you off:
“I think it’s a mistake for a party, as a party, to state a position that a certain judge should be thrown out, because then you are introducing partisanship into a system that is supposed to be nonpartisan,” said Bob Martinez, a prominent Republican lawyer who was once the United States attorney for the Southern District of Florida. “And when you have elected officials, on the right or left, criticizing judges publicly it can become very dangerous and it can undermine the public’s faith in the judiciary.”
Democrats say the campaign is really about giving Gov. Rick Scott, a Republican, the chance to appoint three new justices. The Florida Legislature also wants greater control of the judiciary — an effort that began last year with House Speaker Dean Cannon and is continuing with a proposed amendment on the ballot this year.
“All of this is an attempt to hijack the court,” said Dick Batchelor, a Democrat and former State House member who is working with Defend Justice From Politics, one of several counteroffensives.
“This is all about raw politics. It has nothing to do with jurisprudence.”
Americans for Prosperity, an organization founded by the Koch brothers, recently joined in the battle and began broadcasting television advertisements in several cities highlighting the health care amendment ruling. The group also plans to highlight other cases.
Tell the Koch brothers to take their toilet paper money elsewhere and leave our courts alone.
The big event is tonight from 5:30 to 7:00 at the downtown Intercontinental Miami, or you can contribute online:
Governor Rick Scott has appointed two Fort Lauderdale attorneys to the Seventeenth Circuit Judicial Nominating Commission.
The commission reviews applications and recommends candidates for appointment to the bench on the circuit court that covers Broward County. Circuit judges are typically elected, but when vacancies arise due to death, retirement or resignation, it's the governor's job to fill the vacancy. The nominating commission sends the governor three to six names to consider.
The governor has the option of choosing from the recommended candidates or asking for additional recommendations.
The new appointees to the commission are William McCormick, of the Gray Robinson law firm, and Zachariah "Reggie" Zachariah, of the Greenberg Traurig firm. Both firms are headquartered in downtown Fort Lauderdale.
Maybe they are related?
Either way congrats to Reggie, a 2009 grad who is quickly moving up in the world.
