So What Happens if You Allegedly Defame Someone While Defending a Defamation Action?

It's Valentine's Day, so of course let's discuss whether Levin Middlebrooks should be extended to an attorney's ex parte out of court interviews of potential third-party witnesses.

Should we use the usual absolute immunity analysis, or create a new qualified privilege to cover this particular circumstance?

Answers Justice Pariente:

We hold that Florida’s absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.

But Justice Lewis, in dissent, no likey:

I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of express malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.

Hey, I think Justice Lewis is on the right side of this one.

What say you?

In other news, the elusive butterfly himself, Richard Brodsky, has a new blog, Splendid Spitter, which contains an eclectic collection of erudite and well-informed opinions on a variety of interesting topics -- in other words, the exact opposite of this crappy space!

Good luck Richard (and keep after those auditing firms in the Miami Beach Community Health Center matter).

Oh, and a happy happy Valentine's Day -- enjoy the evening with someone you love.

New Trial Motion Filed in Luke Campbell Case!

Alternative basis for motion -- Campbell's attorney Richard "Elusive Butterfly" Brodsky moved around too much during trial (seriously):

By way of example, during examination of one witness, counsel for Defendant stood up and walked around the courtroom and toward the jury looking for some item, interrupting the testimony being presented, until he was directed to return to his seat by the Court. Similar inappropriate conduct was the norm, rather than the exception, during trial.

There's more -- Brodsky also allegedly disrupted "the flow": 

counsel for Defendant interrupted direct and cross examinations conducted by counsel for Plaintiffs for improper purposes and in an untimely and inappropriate manner. Said interruptions made it very difficult for counsel for Plaintiffs to maintain “a flow” during said direct and cross examinations which was a large concern with LUTHER CAMPBELL since LUTHER CAMPBELL was very evasive and easily distracted.

Needless to say, Brodsky doesn't agree, describing these arguments as "absurd and fatuous" (coincidentally, also the name of Brodsky's first band back in high school).

Luther Campbell Doesn't Really Care Much For Judge Cooke.

It's true we broke news of and have been actively covering the Luke Campbell case that Richard Brodsky masterfully tried before Judge Cooke, but now Uncle Luke, a columnist at the very fine Riptide, breaks his silence over the controversy and has some harsh words for Judge Cooke:

When I finally heard about the allegations, I fought to vacate the judgment and dismiss the case.

The judge refused me, ruling there was enough evidence to send the case to trial. It didn't look good for Miami's favorite uncle. So I hired Richard Brodsky, former attorney of the Securities and Exchange Commission, to defend me. At that point, I had spent a lot of money, and knew I would have to spend a lot more.

When the trial began two weeks ago, Butler was allowed to talk about her job, child, and community service. The photographer was afforded the same opportunity. But when I was on the stand, the judge instructed my lawyer to stop asking me questions about myself. She said that information was irrelevant.

I respect some judges, but not all of them. There is always a chance you'll get one who doesn't like you, your political leanings, or your core values. I would rather face a jury of my peers, who can debate the merits of the argument and come to an unbiased conclusion. In my case, the jury saw through the judge's power play.

Me:  Be a gracious winner.  You won the case, for chrissakes!  You don't need to slam Judge Cooke for her "power play," whatever that means.  Litigants don't really hold equal power with the presiding judge in a federal case, anyways.

Also, and I'll let my buddy Brodsky weigh in on this if he's so inclined, but maybe the judge let in evidence of the plaintiff's background because it went to her damages?

Just take the "W" and move on.

BTW, I'm happy Luke spent a lot of money on Richard -- it was evidently worth every penny.

Your Daily Morning Luke Campbell Verdict Form.

Luke Campbell Verdict Form

A fresh read (along with your coffee).

Note -- excessive use of exclamation points temporarily suspended due to mockery by David O. Markus.

Uncle Luke Wins Trial!

Full defense verdict!

Luke Campbell Case In Trial!

Luke Cambell Evidence Lesson

Trial again on Monday before Judge Cooke, and on the eve of week two new counsel Richard Brodsky submits a tutorial on the difference between authenticity and admissible hearsay:

The issue is whether the two returns of service, in the forms of affidavits from a process server, are admissible.  In denying the Defendant’s objection to the admissibility of these documents as hearsay, the Court stated that they are self-­‐authenticating, and therefore admissible under Fed.R.Evid. 901.  Respectfully, this is a fundamental misconception of the purpose of Rule 901.

I feel like I'm back in my evidence class!

Luke Campbell Has a New Lawyer!

Happy Monday, plebes.

Canes, turkey etc. etc., welcome back to the real world.

In said real world, noted elusive butterfly and quality attorney Richard Brodsky has landed to defend the honor and dignity (and money) of Luther Campbell, filing a notice of appearance in the case brought by Aueishua Butler pending before Judge Cooke.

This is good news for Luke, who now has a steady hand and experienced federal litigator on his side.

My guess is Richard will not just answer the complaint, but bring a counterclaim, serve a huge bunch of financial discovery, schedule the plaintiff's depo and generally be all aggressive in moving this thing forward to a reasonable resolution.

But what the hail do I know?

BTW Richard, about that photo -- you look great, but either straighten that tie or roll up those sleeves!

Paralegals Should Fight Crime and Perform SEC Regulatory Oversight.

Also should be able to index and file properly, according to Fort Lauderdale attorney Mark Tepper:

Securities Fraud Attorney Mark A. Tepper urged paralegals to "pay attention" to identify ponzi schemes like the latest alleged scam by Bernie Madoff. "If it sounds too good to be true, it probably is," he says.

Explaining and answering questions last week while addressing a gathering of paralegals at the Broward Chapter of the Paralegal Association of Florida in Ft. Lauderdale, Mr. Tepper reminded his audience that "confidence men" who operate ponzi schemes are unflappable and can talk a hound off a meat wagon, which may explain why so many sophisticated investors were allegedly victimized by Mr. Madoff.

Of course I'm kidding about the last part -- who cares about indexing or filing anyways?

Also, about that hound/meatwagon metaphor -- what is this, an Abbott and Costello sketch?

But I agree -- paying attention is good. Maybe the SEC can start doing that too? At least that's what Richard Brodsky thinks:

Miami attorney Richard Brodsky said it’s not so much a budgetary issue as a lack of political will to fight fraud after the Bush administration emphasized deregulation.

“Political leadership has not put white-collar law enforcement at the highest level,” he said. “The SEC (Securities and Exchange Commission) has been some of the problem.”

Brodsky, a former staff attorney with SEC enforcement division in Washington, has said the agency partnered with Wall Street to urge Congress to abolish some rules, was tardy in discovering trading abuses at mutual funds and failed to notice the build-up of pooled subprime mortgages and derivatives at investment and commercial banks.

Whoa -- I better stop now, Richard is starting to make too much sense.

(Note -- photo of Richard taken while actually still on tanning bed at the DAC.)

Richard Brodsky, Elusive Butterfly

Hi folks, how was your weekend?

Admittedly I am not on the Richard Brodsky list serve, but I just can't keep up with the guy. His own practice, SSD, and now I open up the Herald and learn he's jumped over to Tabas' shop:

Richard E. Brodsky has been hired as a partner at the Miami-based law firm of Tabas, Freedman, Soloff & Miller. The firm focuses on bankruptcy law, creditor's rights, business reorganization and commercial litigation. He previously worked at the firm Squire, Sanders and Dempsey.

I love going to the old web pages of lawyers after they have announced a move. Here is Richard's former SSD profile, which now comes up completely empty.

In all seriousness, though, we wish Richard good luck working with a fine group of lawyers. BTW, here is Richard's new page, with a bit more information.