Shadows and Light.

Sheesh, what to talk about this morning?

I'm reminded of Joni's Shadows and Light:

Every picture has its shadows
And it has some source of light
Blindness, blindness and sight
The perils of benefactors
The blessings of parasites
Blindness, blindness and sight
Threatened by all things
Devil of cruelty
Drawn to all things
Devil of delight
Mythical devil of the ever-present laws
Governing blindness, blindness and sight

Pacenti writes up an ugly lawyer divorce drama that has been percolating for years but which now sweeps up our endless judicial fundraiser system and potential conflicts of interest :

 A Miami-Dade circuit judge won’t step out of a custody battle between two well-known South Florida lawyers even though the ex-wife’s attorney’s firm co-sponsored a political fundraiser for the judge’s re-election.

Carlton Fields partner Paul Calli is appealing Miami-Dade Judge Maria Espinosa Dennis’ decision to stay in the case. She is up for re-election this year.

Calli claims the fundraiser was within 48 hours of a scheduled hearing in the dispute with his ex-wife, Sarah Mourer, a University of Miami professor of clinical legal education and director of UM’s Death Penalty Clinic and co-director of the Innocence Clinic.

This will be very interesting when the 3d DCA rules.

Personally, I'd rather focus on this nice story about Richard Milstein and the issues LGBT couples face as they near retirement:

This is certainly a concern for Richard Milstein, a Miami attorney. He and his partner of 10 years, Eric Hankin, a public school teacher, have made sure their estate planning is in order. But if Milstein, who has two adult children with his ex-wife, were to die first, Hankin won’t be eligible for Social Security spousal benefits — though the couple married in Iowa two years ago.

“My siblings have children and there’s a certain expectation that these children will take care of them,” Hankin says. “I don’t have any children, but I’m fortunate to have stepchildren and we have a good relationship.”

But even that kind of relationship can be tenuous, whether or not the survivor is gay or straight.

Milstein says that’s one of his concerns if he outlives Hankin.

“I’m older so my thought is I will go first,” he says. “In that case, I worry if he will be able to continue that relationship” with Milstein’s children and a new grandchild.

 Here's another real-life consequence of our antiquated prohibition on same-sex marriages -- let's treat them like every other married couple.

Time to cue Joni:

Critics of all expression
Judges in black and white
Saying it's wrong, saying it's right
Compelled by prescribed standards
Or some ideals we fight
For wrong, wrong and right
Threatened by all things
Man of cruelty-mark of Cain
Drawn to all things
Man of delight-born again, born again
Man of the laws, the ever-broken laws
Governing wrong, wrong and right
Governing wrong, wrong and right
Wrong and right

Let's finish with Gabby D on The Daily Show!

Love the clip!

Read more here: http://www.miamiherald.com/2012/01/31/v-fullstory/2615925/golden-years.html#storylink=cpy

Dear Concordia Passenger: Your Discount Voucher Has Arrived!

The net was abuzz yesterday over reports that Costa was offering Concordia passengers a discount voucher for 30 percent off a future cruise.

Costa, however, disputes this and says they are in fact big shots and are refunding the entire purchase price of the cruise:

"Passengers on board the Costa Concordia on the night of the accident have not been offered a discount on future cruises. Costa is refunding the full cost of the cruise, the expenses incurred on board the ship, any transport costs incurred to reach the port of embarkation and return home if transfers organized by the company were not used. Costa Concordia guests also will be reimbursed any medical expenses they may have incurred as a result of the accident. As regards items left in the safe in the cabin, these will be returned to guests as soon as we recover the safe. Regarding the loss of personal belongings and other forms of compensation, we will be contacting guests in the very near future." 

Costa added, "you're welcome."  

I'm not sure the 15 confirmed dead passengers will appreciate this gesture.

This follows Gabby D'Alemberte's article in the Herald which basically notes that you sign away all your legal rights when you board a cruise (in exchange for an awesome buffet!):

But the U.S. passengers who survived the disaster face a legal nightmare as well. Because of the documents they signed just before boarding the ship, they have virtually no chance to argue their case in court or to receive financial compensation for their losses.

That’s because the Italian cruise line company includes a “choice of forum” clause in the fine print of its ticketing documents that any lawsuit needs to be filed in Italy, not the United States. That makes a huge legal difference in how wrongful death, personal injury and other negligence cases are handled.

First of all, the Italian court system does not allow contingency fees in these types of cases. In addition, a plaintiff is required to post a bond of 10 percent of the expected damage award simply to file the lawsuit. That means a Costa Concordia passenger who could expect a $2 million damages award, based on similar cases in the United States would need to post $200,000 right at the start and pay an Italian law firm $200,000 to $300,000 in fees over the next four or five years before the case could even go to a jury.

While the passenger may well prevail in court, based on the reported negligence of the captain and crew, very few people can afford to spend $500,000 or more in a protracted legal battle. That means the U.S. passengers and their families basically have no recourse in this tragedy.

Yay Tort Reform!!

Gabby suggests you mark out the offending venue language when you check in to your cruise:

When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.

Then, if a tragedy does occur, you have a strong argument for filing your case in the United States, and receiving a fair and equitable outcome. 

I hope she is right about that, but I have my doubts.  If you are checking in with a large group and you hand alter the terms of the contract I have a feeling the boarding agent is going to be pretty ticked off, but maybe I'm wrong?

The bigger point of course is that no one -- including lawyers -- reads these adhesion contracts and even if they do they often just sign because there really is no meaningful alternative (especially where your bargaining rights are so limited).

That's why the judicial doctrines that have developed over the last century to protect consumers from unconscionable or drastically unfair contract terms are so important -- there's simply no other available method to address such poison pills in 6400-page corporate documents when all you want to do is slide down into the pool safely.

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Judge Martinez Reversed On Forum Non Banana Boat Death

Now that's a headline I thought I'd never write.

Actually, it's a very unfortunate case involving a tourist who died riding a Banana Boat in the Bahamas which Judge Martinez dismissed on forum non grounds.

The original opinion is here.

In a thorough opinion by Middle District of Georgia Judge Hugh Lawson, sitting by designation, the Eleventh Circuit identified a number of serious errors in the district court opinion, including a fundamental one relating to the scope of the relevant inquiry:

The district court considered the Southern District of Florida to be the relevant forum for purposes of the forum non conveniens test. In weighing the private interests, the district court looked only at the contacts between the case and the Southern District. Limiting its consideration to just one judicial district was improper. “[T]he relevant forum for purposes of the federal [forum non conveniens] analysis is the United States as a whole.” Aldana, 578 F.3d at 1293; Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir. 2002) (“[F]ederal courts, in the forum non conveniens context, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the United States as a whole.”) The district court should have analyzed the forum non conveniens question by looking at all contacts between the case and the whole United States. This would include consideration of the plaintiff’s witnesses who are located in Florida, including the eyewitnesses and the damages witnesses, as well as the documentary evidence located in Florida, including documents and records relating to damages. While the district court stated that it was unaware of any witnesses or evidence located in the Southern District of Florida, whether the witnesses and documents are located in the Southern District as opposed to the Middle District is irrelevant in a federal forum non conveniens analysis. It was error for the district court to consider only the contacts that the case had with the Southern District of Florida.

I reviewed the original opinion and don't see any discussion of whether or not the inquiry should be limited to the SD FL or the United States as a whole (and no reference to the controlling Aldana opinion).

Congrats to Gabrielle D'Alemberte for a huge victory and a nice way to end the year (ok, you too Joel but I hope you don't mind if I don't put up your picture).

Gabby's blog is here btw.