Tramps Like Us, Baby We Were Born to Cite!

The big day is almost here, see you all at lunchtime:

LUNCHEON MEETING FEATURING
THE HONORABLE JONATHAN GOODMAN

Guest Speaker:
The Honorable Jonathan Goodman, United States Magistrate Judge,
will address the must-hear-this topic:

"Rock & Roll Music in Judicial Opinions"

When: Wednesday, April 11, 2012
11:45 a.m. - 1:15 p.m.

Where: The Bankers Club
One Biscayne Tower
2 South Biscayne Blvd., 14th Floor
Miami, FL 33131

I'm sure the good Judge will point out that none other than Bobby D is the most-cited songwriter in legal opinions.

Here is the list from a recent study:

1. Bob Dylan -- 186 instances
2. The Beatles -- 74 instances
3. Bruce Springsteen -- 69 instances
4. Paul Simon -- 59 instances
5. Woody Guthrie -- 43 instances
6. Rolling Stones -- 39 instances
7. Grateful Dead -- 32 instances
8. Simon & Garfunkel -- 30 instances
9. Joni Mitchell -- 28 instances
10. R.E.M. -- 27 instances

Question -- is it possible to cite a song lyric in 300 characters or less?

Survey says:

3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.

 And also:

The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).

Oy veh -- next he'll take two paragraphs to explain what "it's better to be safe than sorry" means.

(Strike that).

Oh I kid the good judge -- the fact is this will be a fantastic presentation and I'm really looking forward to it.

See you all at lunch!

"I am Honored and Humble that the President is Coming to my Home"!

 Of course he is:

"This is a day that should not be tarnished by gossip and innuendo that have no basis in fact."

Question -- shouldn't every day?

Are you getting ready for Magistrate Judge Goodman's big speech tomorrow?

Be there or be square, kiddies.

Hey Man, Is This Real?

I sure hope so:

The Honorable Jonathan Goodman, United States Magistrate Judge, will address the must-hear-this topic: "Rock & Roll Music in Judicial Opinions"

Coming on the heels of Judge Gold's excellent mindfulness and wellness presentation, I must ask the obvious question:  just what the hail is going on over at the FBA?

I'm just wild about saffron....

As you know we have been closely documenting Judge Goodman's rock-and-roll (and country!) references, as well as the elaborate (some would say byzantine) 300-word citation system he employs to simply name-check a Petty song.

All kidding aside, this one is a winner -- the presentation is on April 11 and you can grok all the groovy details here.

(Quite right slick!)

DC Fiddles While the 11th Circuit Burns.

I know some of you (most of you?) braved the rain and were at Brett Barfield's spectacular FBA Federal Judicial Reception this evening at the Hyatt downtown.

(To those of you who wondered in from the the adjacent Cosmetic Surgery Convention, yes this is what South Florida judges and lawyers really look like.)

Ka-ching!

It was a great event, filled with much #humblebrag but also genuine camaraderie and good cheer -- if you missed it, it was truly your loss.  There is no better way to feel connected and part of a real community of active, involved, caring judges and lawyers than attending this event.

Judge Jordan of course was there, connecting and relating to the lawyers and judges around him.

Meanwhile, the interminable gridlock in DC that has caught up this once-in-a-lifetime bipartisan consensus nominee for the 11th Circuit drew special attention from Senator Leahy, as passed on by the always in-the-know Glenn Sugameli:

Senate Republicans continue to block even judicial nominations with home state support from Republican Senators.  Republican Senator Marco Rubio and Democratic Senator Bill Nelson of Florida both introduced  Judge Adalberto Jordan of Florida to the Judiciary Committee when we held his confirmation hearing last September for his nomination to fill a judicial emergency vacancy on the Eleventh Circuit, and both strongly support his nomination.

Judge Jordan is an experienced jurist who has served as a judge for the Southern District of Florida since 1999.  If confirmed, Judge Jordan will be the first Cuban-born judge to serve on the Eleventh Circuit, which covers Florida, Georgia and Alabama.  Born in Havana, Cuba, Judge Jordan immigrated to the United States at age six, going on to graduate summa cum laude from the University of Miami law school.  After law school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit, the court to which he is now nomination, and for Justice Sandra Day O’Connor, a President Reagan appointee to the United States Supreme Court.  Judge Jordan has been a prosecutor in the Southern District of Florida, serving as Deputy Chief and then Chief of the Appellate Division.  Judge Jordan has been a professor, since 1990 teaching at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law.  It is no suprrise that the ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Jordan “well qualified” to serve on the Eleventh Circuit, the highest possible rating from its non-partisan peer review.  It is also no surprise that his nomination was reported unanimously by the Judiciary Committee nearly four months ago.  The surprise is that Senate Republicans continue to stall action on this nomination for no good reason.

Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home state senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges.  In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee.  Yet Republicans refused to consent to a vote on Judge Jordan’s nomination before the end of the last session and it has been stalled on the Senate Calenadar for nearly four months.  When we finally do vote on Judge Jordan’s nomination I am certain he will be confirmed with broad bipartisan support, perhaps unanimously.  There is no good reason the Senate is not voting to confirm Judge Jordan today.

Is there any reason for Republicans to continue to hold up this confirmation?

Sug reports that finally, on Monday, February 13, 2012:

• the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11^th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .
• Upon the use or yielding back of time (at approximately 5:30pm), the Senate will vote on the motion to invoke cloture on the Jordan nomination

 Hallehujah!!

Thanks for the Shout-Out, Judge Scola!

Let's start by heaping praise on Brett Barfield and his team at the FBA who continually put on highly informative and well-run programs and events, including today's must-attend, completely sold-out Judge Scola luncheon.

The ever eloquent Judge took time from his busy calendar to answer pressing and important questions from curious federal court practitioners, such as:

1.  What is your favorite color?
2.  Boxers or briefs?

and my personal favorite:

3.  How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

Seriously, the Judge is a major dude and a fantastic speaker, and we appreciated the shout out -- it's probably better to be known for repeatedly highlighting a recent flawed Supreme Court opinion than, say, Bo Derek or the pros and cons of Keytars.

Thanks for taking the time, Your Honor.

Live Footage From FBA Installation Dinner!

Among the many highlights on Thursday was Judge Gold's presentation to Judge Hoeveler of the NED award in honor of Judge Davis.

One thing I didn't know was how accomplished Judge Hoeveler was as a musician, regaling the law students at Harvard with his boogie-woogie, tickling the ivories as they say.

It was at that point the curtain behind Judge Gold dramatically opened, revealing a full band and stage set up, at which point Judges Marra, Martinez,and new Judge Bobby Scola suddenly appeared onstage and they all performed a rousing musical tribute.

I'm telling you Brett keeps raising the bar higher and higher......

Special Report: Inside the Occupy FBA Installation Dinner Protests!

[Ed. note -- I received this front line transmission late last night from one of the #OFBAID protesters who converged on the Biltmore to protest Brett Barfield's continuing and successful efforts to improve, modernize, and upgrade the South Florida chapter of the Federal Bar Association.  His/her unedited report follows.....]

I write this from deep inside the belly of the beast, having endured hours of lovely cocktail conversation, fantastic tributes to newly confirmed judges Kathy Williams and Bob Scola, and a very moving and deeply affecting Judge Edward Davis award (the "Ned") presentation by Judge Gold to Judge Hoeveler.

That is not to say I did not suffer for the cause.

For example, in a clear act of self-abnegation, I purposely sat next to Scott Dimond.

Additionally, rather than eat all three of the delightful tortellini appetizers I only ate two (and half of one that Judge Moreno left on his plate).  My filet was undercooked yet I did not complain.  My will remains strong.

Conditions here are dire.  I have asked repeatedly for another glass of merlot but instead keep receiving cabernet.  I have not returned the seven glasses of clearly inferior swill offered; rather I have drunk them in solidarity as my injustice indigestion continues to build.

I have been forced to send this message from a secret underground location the beautiful courtyard overlooking the golf course using the free hotel wifi.  Although the riot squad has not pepper-sprayed me yet, I am sitting next to Scott Dimond.  Repeat:  I am sitting next to Scott Dimond.  He is discussing proposed rule amendments and GOOD LORD!!!...crackle...ack!....[]

[ed. -- transmission ended abruptly at 11:37 p.m.; no further communications were received]

Judge King Defaults Wachovia for Blowing Deadline -- Time to Take REALLY Deep Breath.

Mere hours after Judge Gold's excellent FBA speech on mindfulness, Judge King reminded counsel -- including heavyweights at Hunton & Williams and Birmingham's Maynard Cooper & Gale, that it's probably a good idea to double or triple calendar dates to respond to an amended complaint -- even if someone else is supposed to be handling it.

Why, you might ask?

All the Judge did was sua sponte enter a default against Wachovia for failing to respond to the Amended Complaint in an auction rate securities action!

The next day, after much deep breathing exercises I am sure (ed. note -- and possibly a call to the carrier), Birmingham lawyer Carl S. Burkhalter took one for the team (he also referenced his secretary and departed associate):

Defendant has not filed a timely answer to Plaintiff’s amended complaint. The reason for that failure, as explained below and in an accompanying declaration, is that the deadline date for answering Plaintiff’s amended complaint was not entered on the calendar of Carl S. Burkhalter, the undersigned attorney and primary defense counsel in this matter. The undersigned attorney depends on an associate and his secretary to docket deadline dates, but the associate in question (Ms. Prim Formby Escalona) left the firm in January 2011, whereas the undersigned’s secretary was unaware of the deadline and, thus, failed to make a calendar entry. Having said that, it is the undersigned’s duty to meet court-imposed deadlines. He accepts complete responsibility for this failure and he is profoundly sorry for the oversight.

Note to Carl -- your secretary does not get CM/ECF emails, you do.  Did you forward it to her?

Here's what he says happened:

Ordinarily, the February 17th deadline would have been docketed on the undersigned’s calendar by either or both of two persons: the associate on the file or Ms. Laura Juarez, the undersigned’s secretary. See Burkhalter Declaration. Unfortunately, these redundant systems failed in this instance, something that has never before happened in the undersigned’s twenty-year practice of law. The associate, Ms. Prim Formby Escalona, had left the firm in early January 2011 to become Chief Deputy for the Alabama Solicitor General. Id. In the undersigned’s federal court cases, any e-mail notices he receives are usually “auto-forwarded” to Ms. Juarez, who then makes the relevant deadline notation on the undersigned’s calendar. However, for some unknown reason, the “auto-forwarding” rule did not function in this instance, meaning that Ms. Juarez did not make a deadline entry on the undersigned’s calendar.

Oh boy.

Life happens, as they say.

Let's see what the plaintiff has to say about all this:

While Mr. Burkhalter’s efforts to take responsibility for Wachovia’s failure to timely comply with the Court’s Order appear sincere, they ignore the fact that two other current Wachovia lawyers were served with the Order and Amended Complaint. Thus, the Motion sets forth no good cause for their – or Wachovia’s – failure to timely respond. Moreover, the Motion fails to provide evidence in support of its purported defenses to STLA’s claims. Meanwhile, STLA is prejudiced by the delay. For these reasons, the Motion should be denied.

The Court has not yet ruled on the motion.

Who says being a litigator ain't stressful?

Judge Gold's Mindfulness Campaign is Already Working!

DeniedasAbsurd

Last week at the FBA luncheon Judge Gold delivered a tremendous message of mindfulness in the practice of law, and we're already starting to observe concrete, positive results.

For example, after I served a purely tactical 57.105 motion on opposing counsel the other day, the lawyer called me blabbering on as usual about my "bad faith."

Rather than getting into a shouting match about professionalism I simply asked "how does my motion make you feel?" and we suddenly had a really nice dialogue about organic yogurt and green tea.

So I think David Pollack's skepticism is unwarranted.

Also, per Dennis Kainen's question, I see judges are likewise starting to jump aboard the mindfulness bandwagon.

Here's a recent order from Magistrate Judge Brown that denies a motion for clarification "AS ABSURD":

The Court finds this motion totally disingenuous. One need not be a lawyer to understand that all responses to all discovery propounded by plaintiffs as of [December 21, 2010] shall be delivered on or before Monday, January 31, 2011 (emphasis added), means all responses to all discovery propounded as of the date of said order. While defendants suggest that they "seek clarification" - no clarification is needed. Perhaps it might be worth pondering ... what part of "all" do you not understand? But - it doesn't end there.

Defendants - in an attempt to somehow confuse the obvious - suggest that because they weren't seeking an extension in the motion for document production they weren't sure if this order pertained to same. There are two problems with that absurd argument: (1) the deadline given to defendants was already an "extension" since it was more than thirty (30) days from the date of  the order - much less from the date the discovery was propounded; and (2) if the confused defendants didn't understand this, and they didn't (by their own admission) ever seek an extension for the document production - why did they wait until almost one month after that deadline to file this motion?

The deadline for completion of discovery is in May, 2011. Therefore, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:

1. This motion for extension is GRANTED. The motion for clarification is DENIED AS ABSURD.

This seems harsh I agree, but think how much worse this Order could have been!!

Things Inside My Head.

 Here's a quick snapshot of what's inside me noggin this morning, in no particular order:

1.  I plan to ask for a kosher meal at today's FBA luncheon.

2.  It's almost worse that Con Law Perfesser Obama legitimized Gitmo, indefinite detention, and military tribunals than it is that "rancher" George W. Bush instituted these Constitutional aberrations in the first place.

3.  Could Johnny Storm really be dead?

4.  I totally agree with Andrei Codrescu on NPR the other day about defacing my new e-book with some "crowdsourced" idiocracy contest regarding highlights:

And this thing on my Kindle is supposed to be new. And then I discovered that the horror doesn't stop with the unwelcomed presence of another reader who's defaced my new book. But it deepens with something called view popular highlights, which will tell you how many morons have underlined before so that not only you do not own the new book you paid for, the entire experience of reading is shattered by the presence of a mob that agitates inside your text like strangers in a train station.

 5.  Dan Le Batard may finally have to blame someone I've never seen him identify before as being responsible for anything negative, ever -- the players.

6.  Wes Parsons was only hoping to lose the latest citrus canker trial by $3 million, but instead lost by $12 million (plus fees and substantial interest), but what's $10 or so million between friends:

"I was hoping for the amount of compensation already paid, which was around $3 million."

Question -- wasn't there a defense on liability too?

7.  This post is starting to resemble Greg Cote.

(Note -- no offense, but I have met Greg Cote).

FBA 30th Anniversary Reception Tonight!

I'm spending all day getting ready for the big FBA reception tonight (David has photos here).

For me that means the usual -- face painting, signed Brett Barfield jersey, mani/pedi at the Hyatt.

I'm also trying to come up with something funny to say about Egypt.

This is going to be HUGE!

Another Judicial Reception!! (Yawn)

Well I don't know about you, but I'm getting ready for tonight's big Judicial Reception, which means I have prepared the following to do list:

1. Immediately down two large dry Gin Gibsons;

2. Track down and punch Brett Barfield.

3. Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

4. Listen to similar self-aggrandizing anecdotes and think to myself how it's all total bullcrap.

5. Count other people's money.

6. Pretend to remember that guy's name.

7. Kiss Melanie Damian (professionally, of course!).

8. Sneak into photo op of Judge Moreno and Bob Josefsberg.

9. Kiss Melanie Damian (did I already write that?).

3d DCA Watch -- CANCELLED DUE TO LACK OF ANYTHING TO WRITE ABOUT

Boy that was some Federal Bar Luncheon today, huh?

I sure hope Herman finds out exactly when the right time is to apply for judicial clerkships, I don't want him to miss out.

Also, Judge Seitz doesn't really "do" email, and Judge Altonaga managed to make a discussion of CM/ECF very interesting -- seriously.

One suggested expansion category for the drop down selection screen -- to do lists.

Nice group of clerks you both have, btw -- but Mikey you'll have to wait before you can start hiring them all.

Now, let's talk about the 3d DCA.

If I didn't know any better, I would think that maybe, just maybe some Resplendently Robed jokester was trying to make our lives difficult this week, by purposely only releasing opinions that have the word "State" in them.

Was it you, Judge Ramirez?

It's ok, you can come clean now.

Ha ha no civil orders, I get it boy do I have egg on my face.

Point made, Your Honor.

Now how about even one measly civil opinion, you know, for the good times?

3d DCA Watch -- "Actions Have Consequences" Edition

Well given that there were only three civil opinions released this week and one is a glorified PCA and two are United Auto cases, I thought I would do a short 3d DCA Watch and head over to the Federal Bar luncheon early to see if Judge Jordan wanted to have a quick game of pick up football in the Bankers Club lobby.

(Judge Gold, don't worry -- you can be all-time-QB!)

But then I came across this interview of Nicole Kidman discussing her marriage:

'I've explored obsession. I've explored loss and love in terms of being in a grief-stricken place, I've explored strange sexual fetish stuff, I've explored the mundane aspect of marriage, and monogamy,' Kidman said.

'You work on it,' she went on of marriage. 'It's a very extraordinary, adventurous place to be: incredibly raw, incredibly dangerous and you're very much out at sea. You're exposed. You could drown.'

'When you commit to someone like that, you live and die together by that decision.'

Read more at: http://www.huffingtonpost.com/2009/11/04/nicole-kidman-i-tried-str_n_345060.html

Holy hail -- is this a marriage or Basic Instinct?

All I can say is Tom, you really did a number on her.

I want to focus on this United Auto opinion by Judge Shepherd because I think it encapsulates the way this Judge approaches the law.

As usual, it's a second-tier cert appeal of a circuit court appellate division PCA of a county court decision that went against United Auto.

The first thing that's notable is Judge Shepherd spends an unusual amount of time detailing the basis for the Court's jurisdiction. In fact, you don't even get to the facts section until page 3. This is consistent with the Judge's limited jurisprudential approach.

The second thing I found interesting is you don't learn the outcome of the appeal until page 7 -- most judges will summarize the outcome (affirmed, reversed etc.) up front.

Way to keep your audience guessing, Judge!

Third, this is another example of Judge Shepherd taking a very close and narrow read of a statute -- in this case section 627.736(4)(b), which apparently does not require an insurer to ever respond to an insured's request for payment under a PIP policy:

In fact, carefully parsed, it is clear there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment.

So under the statute an insurer can simply ignore a request forever.

Finally, there are Judge Shepherd's usual turns of phrase:

However, actions have consequences.

And this:

Accordingly, while there is no absolute deadline for the payment of a properly presented personal injury protection claim, there is a cost—and, indeed, ever increasing risk—to a miscreant insurer who does not treat its customers properly. This is the manner in which the legislature has chosen to regulate insurers in matters of this type.

Here that, all you "miscreant insurers" out there in "miscreant insurer land"?

Don't blame us -- blame your legislature (yet another recurrent theme).

Ok, I got me some football to play!

Off to the FBA Judicial Reception.

Well I'm just about done for the day and soon I'll be heading over to the Hyatt to hobnob with many of you and also Brett Barfield.

Actually, I believe the ticket contractually obligates you to mingle with Brett.

I kid I kid -- Brett's a great guy (darn adhesion contracts!).

See you there!