I'm sure none of my dear readers have done this, but I have heard talk that sometimes lawyers will spring demonstratives on opposing counsel mere seconds before presenting them to the judge or jury.
During the pretrial stage, two attorneys working for Petitioners created a master summary chart (“MSC”) to be used as a trial exhibit. The MSC consisted of a combination of personal injury protection files generated by Petitioners, and medical and billing charts generated by Respondents. Over Respondents’ objection, MSC was introduced into evidence as a summary based on section 90.956, Florida Statutes (2004). However, the trial was terminated before judgment when a mistrial was declared by the trial court.
Prior to retrial, Respondents filed a motion to take the depositions of Petitioners’ attorneys who created the MSC. After conducting a hearing, the trial court granted the motion, finding that because the attorneys were “interject[ed] into this case by [their] creation of a critical trial exhibit,” Respondents were “permitted to question the accuracy and methodology used for creation of the [MSC].”
But the 4th said okey-dokey:
While it is true that the attempt to depose a party’s attorney during ongoing litigation has been rejected when irrelevant or privileged information was sought from the attorney, attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.310(a), which allows the taking of the deposition of any person. . . .While we recognize the potential for abuse of the process of deposing the opposing party’s attorney during ongoing litigation, we are confident trial courts in this district will use their powers of supervision over discovery to prevent privileged information from being disclosed.
I really enjoyed Seinfeld and appreciated its groundbreaking comedy, but when I see lawyers who are insufferably uncool reference the show I start to feel that maybe it's a bit too obvious.
Apparently the plaintiff sued her employer in tort for battery and negligent retention and supervision, but the defendant argued the complaint was "actually for sexual harassment and discrimination" and plaintiff was trying to plead around the Title VII pre-suit requirements.
You hear this a lot in state court. Parties are always trying to argue what the other party "really is doing" and lawyers frequently spin out fanciful narratives to explain why one count got dismissed, or why someone amended, yada yada yada. (Oops!)
Here's what the 4th said:
Florida law permits multiple causes of action to co-exist. Florida Rule of Civil Procedure 1.110(g) states that “[a] pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined.” It further provides that “[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.”
In short, something can actually be more than one thing at the same time.
You gotta love litigating against the state -- it's like fighting with a headless chicken: there's no one in charge, no one accountable, no one making "hard" decisions that involve long-term thinking, and absolutely -- and I mean absolutely -- no one counting the money.
That's how you can wind up with this absurd decision by the 4th DCA, which the DBR reports on here, where the court actually has to explain to the state that spending tons of money trying and losing the citrus canker case does not mean that the state somehow "won" and that they therefore are entitled to -- of all things -- fees(!):
We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.
This is mind-numbingly stupid.
In fact, I can't even begin to put in words how asinine this argument is and that the state actually went ahead and paid Wes Parsons good taxpayer money to take it all the way up on appeal.
God I gotta do something to calm down and take my mind off this drivel:
Ok, it's working -- I'm starting to feel better now.
Given that we just saw the State blow $120k on dubious "expert" anti-gay adoption testimony, I don't want to overstate anything.
But is it too much to suggest that the State's furious scorched earth litigation strategy in defending the citrus canker lawsuits -- paying Adorno & Yoss hundreds of thousands of dollars (millions?) to force Bobby Gilbert to try multiple suits in different forums for the last six years -- ranks up there with one of the more colossally stupid wastes of taxpayer money in recent memory?
I guess I say that given the canker eradication program they have spent so much money vigorously defending at taxpayer expense -- a program that radically changed the landscape of South Florida -- was such a wanker in the first place.
As I've previously written, if you grew up in South Florida you probably remember orange, lemon, grapefruit, sour orange, blood orange, tangelo, those weird hard orange/lemon hybrid fruits, and all manner of citrus in your backyard, in your neighbor's backyard, in the empty yards, in the swales, on your way to school, on your way to your friend's house, and pretty much everywhere you went.
You could bike around the block and collect all the citrus refreshment/armed weaponry you needed in a matter of moments, and later on it turned out all that backyard fruit made a great marinade!
But those days are gone.
In their place, we've had a perpetual transfer of taxpayer funds into the coffers of Adorno & Yoss, so they could seriously argue that suits that raise similar issues in different counties all have to proceed simultaneously (rather than wait for the benefit of an appellate ruling in one of the cases that could impact the legal issues raised in the other suits).
That should have been a big sign that something was rotten in the overly zealous way these cases were defended.
I have no idea why the State feels the need to so obstinately defend their questionable citrus canker program in the first place (pride/hubris from the decisionmakers involved?) but we are finally beginning to see the light at the end of the Wal-Mart voucher tunnel:
The Fourth District Court of Appeal unanimously held that some 55,000 Broward property owners are due $11 million for healthy trees felled by state chain saws from 1995 to 2006.
``Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them,'' the judges wrote. ``Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it.''
Confirming a widely held belief among property owners, the ruling said it was ``apparent from the history of this case that [the Department] destroyed these privately owned healthy trees not because they were `imminently dangerous' to anybody, but instead to benefit the citrus industry.''
Maybe now -- finally -- we have a window for the State to take a breath, reach out and turn off the Adorno litigation spigot and try to find a reasonable resolution to this fiasco?
Of course not:
``We respectfully disagree with the appeal court, and we will appeal it to the Florida Supreme Court,'' Florida Department of Agriculture spokesman Terence McElroy said, citing $44.5 million already paid on claims around the state.
Although the decision applies only to the Broward suit, plaintiffs' attorney Robert Gilbert said it will affect class actions pending in Miami-Dade, Palm Beach, Lee and Orange counties. He called the state's repeated appeals ``abusive.''
Florida ``wasted over $500 million destroying these trees, and millions more battling us in court,'' he said.
Why the reflexive, split-second reaction calling for an appeal? Is it more of the bury-your-head-and-keep-on-going legal strategy we've seen so far?
How about "we intend to carefully study the appellate opinion and confer as to what additional legal steps, if any, will be taken."
Obviously, the state's entitled to a defense and you need to find some numbers everyone can live with, but come on already.
You can read the entire opinion here, but I found the special concurrence by Judge Levine to be powerful:
I fully agree with the majority opinion, but I write to emphasize the clear legal right of the individual homeowner to receive just compensation as a result of the actions of the State. The State's actions in cutting down these trees most assuredly constituted "takings," whether under the regulatory takings or physical takings analysis, that demanded just compensation. Regardless of the type of takings denominated here, the result in this case must be the same — full and just compensation to the homeowners.
By requiring the State to abide by its constitutional obligation to compensate individual homeowners, we safeguard the property rights of all. "The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary." Joseph Story, The Value and Importance of Legal Studies (1829), in Miscellaneous Writings of Joseph Story 503, 519 (William W. Story ed., 1852).
