Magistrate Judge Torres Explains the Legal Caste System!

This is a great R&R from Judge Torres awarding fees pursuant to 28 U.S.C. § 1920 to H&K in defending an "objectively unreasonable" copyright suit.

There are so many interesting things in this order I don't know where to begin.

Let's start with the fact that it took 19(!) H&K lawyers in four cities (Miami, Atlanta, DC, and Boston) to handle an objectively unreasonable lawsuit.

Then there's the whole billing rate problem:

To be fair, the record shows that various Florida lawyers were indeed involved and billed extensively on the file, including highly experienced and respected lawyers like Sandy Bohrer and Chris Bellows, who are seeking even higher rates. But that then leads to the question whether their billable rates are necessary to attract competent counsel in this community to represent Coca-Cola. Clearly they are not.

Judge Torres continues by way of analogy:

In other words, one can drive from point A to point B in a Ferrari, a BMW, or a Ford Fusion. Which car one chooses is ordinarily a matter of personal style coupled with financial freedom. The successful personal injury or criminal defense lawyer may choose the Ferrari. The average corporate defense lawyer will wisely choose the BMW. But a successful attorney fee applicant can only choose the Ford Fusion. It is quite reliable, consistent, and effective for the task at hand, and will not break the bank. And because of that only the cost of a Ford Fusion is compensable under an attorneys’ fee statute based on the American Rule that governs federal litigation.

A few questions:

1)  Why is the successful PI and criminal defense lawyer lumped together, both driving a Ferrari?

2)  What is "wise" about the average corporate defense lawyer's choice of a BMW, and don't some (many) also drive fancy sports cars or even Ferraris?

3)  This is not good publicity for Ford Fusions.

The Judge is not done:

That is why premium-rate lawyers who work at large high-powered law firms like H&K exist. They are lawyers who graduated from the best law schools like Georgetown, at the top of their classes at schools like Columbia or the University of Miami, who clerked for distinguished federal judges, who work night and day, 365 days a year, in the interest of that corporate client that demands perfection 100 percent of the time. These lawyers are (in very rare cases) the Ferraris and (in most cases) the BMWs of their profession who would never market themselves as merely “competent” or “average” or “reasonably priced.” These lawyers market premium legal service, which carries with it premium hourly rates.

Hmm, that's an awful lot of assumptions in one paragraph.

Georgetown, heh?

Hey, I know a Magistrate Judge who graduated from there!

BTW, I'm sure Coke's shareholders are happy they hired a firm who put 19 lawyers from around the country (plus another firm out of LA) on a case that had absolutely no merit whatsoever.

Oh well, $425 an hour's not bad for the ham-and-schleppers stuck driving around the South Florida legal community in their crappy Ford Fusions.

Beats the Ford Pinto, I guess.

Florida Supreme Court Weighing Hank Adorno Disbarment.

Did you know Hank Adorno is still a lawyer?

I didn't, but he may not be for long:

The court ordered Adorno to show cause by Nov. 16 why a suspension of up to three years or disbarment should not be imposed.

The Florida Bar had recommended a six-month suspension, but a referee who heard the ethics charges against Adorno recommended only a reprimand, the lightest possible punishment.

Adorno did not respond to a call for comment by deadline.

The court raised the issue of a suspension on its own, according to the two-page order written by Chief Justice Charles Canady.

The court ordered Adorno, the law firm president, to be suspended within 30 days so he can close out his law practice — or immediately if he is no longer practicing. The court also ordered him to accept no new clients, send a copy of the order to all existing clients and courts, stop withdrawing money from trust accounts without court approval and provide a copy of the suspension order to all banks he does business with.

 The Court was apparently not persuaded by the macher boys-club backslappers who rose in Hank's defense:

A parade of South Florida legal heavyweights pleaded on Adorno's behalf. His supporters included former Florida Supreme Court Justice Raoul Cantero, Sanford Bohrer, a partner at Holland & Knight, and Ruden McClosky founding partner Don McClosky.

Hold on a minute -- don't the Supremes know who these people are?

Miami Herald Facing Possible Lawsuit Over Jeff Greene Coverage.

CNN is reporting that Bryan Cave litigator L. Lin Wood has been retained to possibly sue the Miami Herald and St. Pete Times over several articles on Jeff Greene that the candidate claims are defamatory:

Greene's lawyer has demanded the St. Petersburg Times and the Miami Herald publish the retractions to correct three articles the newspapers published earlier this month. The articles were written by St. Petersburg Times reporters and were first printed by the Tampa-area newspaper. The Miami Herald printed the articles shortly thereafter. The papers have a working partnership and often share resources to cover state news.

Times editor Neil Brown said last week that no retraction is forthcoming, and Greene is expected to follow through, potentially as early as Friday.

In one of the stories, first published on August 8, the Times reported that in 2006, Greene had sold California property to Delbert McConville, who is now in jail facing conspiracy and money laundering charges. Greene admits to selling McConville 300 condos, but insists that his connection to McConville ends there and that he was not a party to the dealings McConville engaged in that led him to jail.

In another story, the Times linked comments Mike Tyson made to Sports Illustrated in an interview published on July 28 to time the boxer spent aboard Greene's 145-foot yacht, describing the activity on the yacht as lavish, teeming with naked, drunken parties. Greene denies those claims.

In an August 16 letter to Miami Herald executive editor Anders Gyllenhaal, attorney L. Lin Wood, said the stories are "replete with false, misleading and defamatory statements of face concerning Mr. Greene."

Wood sent a similar letter to the top editors at the Times on August 11.

Both papers have endorsed Meek in the Democratic primary.

To paraphrase Steely Dan, Lin Wood is a major dude.  He previously represented accused Centennial Olympic Park bomber Richard Jewell, the parents of Jon Benet Ramsey, Howard K. Stern, and has been involved in many other high-profile defamation cases.

I'm not sure if the Herald will retain our own silver fox, Sandy Bohrer, to defend these claims, but if so we are looking at a powerhouse match up.

One question (and no offense to the highly qualified Mr. Wood) but couldn't Greene hire a Florida lawyer to prosecute these claims?

Some of us could use the work!  (I guess Lin will need local counsel).

Paging George L. Metcalfe!!

Hoo-boy, fresh from testifying as a character witness for Hank Adorno, Herald outside counsel Sand "Sandy" Bohrer takes to the Herald editorial page to shoot a Cheney-sized load of buckshot straight into the handsome-but-not-in-that-kind-of-way kisser of none other than our own George L. Metcalfe:

For almost 200 years of our history in many states, marriage was not simply restricted to a man and a woman, but had to be racially pure. If you were white, your spouse had to be white; if you were ``colored,'' your spouse had to be ``colored.'' It became complicated, as who is ``white'' and who is ``colored'' was not so clear, given the number of people whose parents were not racially ``pure.''

Seemingly intelligent people confidently justified these prohibitions, claiming (1) the regulation of marriage is exclusively within the power of the states, and thus immune from attack under the U.S. Constitution, (2) the framers, those white men of the 18th century, several of them slaveholders, never intended for there to be interracial marriage, and (3) it was psychologically and sociologically inappropriate.

Lawyers for Virginia, asking the Supreme Court in 1967 to uphold its prohibition against interracial marriage, pointed to ``scientific opinions'' supporting the ``desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view.'' They left out religious, but the Virginia trial judge did not: ``Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.'' And: ``The fact that he separated the races shows that he did not intend for the races to mix.''

The children, it was feared, would be harmed by all these problems, and by reason of being ``mixed race'' children. How could we inflict such a fate on our children? Certainly they could never succeed in life, such as by becoming president.

The Supreme Court made short work of Virginia's statutes.

Now we debate not interracial marriage, but gay marriage and gay adoption. And we hear the same ``reasons'' we heard before.

Hmm, so you're suggesting those who oppose gay adoption are like those who opposed interracial marriage?

Sandy, are you aware of certain direct quotes from God or the numerous laws prohibiting garments made of mixed animal materials?

I thought not -- I rest my case.

Gee, I wonder if anyone will write a letter about this.

Hank Adorno "Not A Class Action Lawyer."

So says Hank's lawyer Andy Berman at the ongoing sanctions hearing, as reported by the always excellent Julie Kay.

Question: then why was Hank handling a major public-interest class action?

Also, can someone explain to me the purpose of calling "character" witnesses such as Raoul Cantero and Sandy Bohrer?

Generalized evidence from other lawyers about the reputation of another lawyer seems to be totally irrelevant to determining specific questions of legal or ethical violations.

Plus it's inherently unreliable.

I mean, isn't that obvious by now?

I'm not suggesting any parity at all in this example, but imagine a year ago and the issue on the table was the "reputation" or "character" of our own major macher Scott Rothstein.

You had seventy lawyers, judges, etc. who worked for him, numerous politicians, sports stars, jewelers, businessmen, charities and others who vouched for his character, he was appointed to JNC and grievance committees etc., and you could have probably lined up 100 prominent and well-respected lawyers who would have extolled Scott's virtues to the heavens.

And this means what?

Or how about this -- a year ago Hank could have called successful and well-respected Broward litigator Scott Rothstein as a character witness.

See what I mean?

Have we learned nothing about the fragile house of cards upon which lawyers can create and sustain reputations in our sunny town?

When the S*&T Hits The Fan.

Boy it's a crazy day out there for South Florida lawyers, huh?

First there's this blockbuster story from the always intrepid Julie Kay taking a look at the John Leighton-Ira Leesfield breakup.

Among the more interesting allegations is that Ira installed spy software, bought lots of fancy things, and used his shop to bankroll Hillary's Florida campaign -- in other words, a day in the life at my firm.

Apparently, however, this was somehow problematic for Leigton:

The relationship nosedived when Leesfield failed to turn over the firm’s financial records shortly after Leighton became a name partner, the suit said. Leighton grew concerned about the firm’s expenses, overhead and compensation. At the same time, Leesfield would continually lecture Leighton about curbing his expenses.

“In 2007 and 2008, Leesfield spent several months away from the law firm and the active practice of law pursuing personal interests including serving as the finance chairman for Hillary Clinton’s failed presidential campaign,” the complaint states. “Much of the time that Leesfield actually spent in the office was used to solicit contributions for Hillary Clinton, and Leesfield as it turns out was using the law firm’s resources including staff, offices, postage, office supplies and other items to fund Leesfield’s personal political interests for Hillary Clinton causes.”

Leesfield “became confrontational, dictatorial and verbally abusive” when Leighton asked about firm finances, the complaint said.

Hall does not deny Leesfield spent a lot of time working for Clinton.

“He has a lot of causes he believes in, and he has earned the right to work on them,” Hall said.

Leighton suspected the firm was paying for Leesfield’s personal expenses including “vacation homes, parties, meals, entertainment, travel for himself and his family, clothing, luxury items and social, political and personal activities that were completely unrelated to the law firm’s business,” the complaint said.

Leighton also accuses Leesfield of putting his daughter on the firm’s payroll when she worked only sporadically and renting office space he and his wife personally owned at rates above fair market value.

Hall said Leesfield’s daughter, who does public relations for the firm, is actually underpaid for the work she does and Leighton, not Leesfield, is the big spender. “He had to have a $110,000 car,” Leesfield said.

Leesfield installed computer surveillance and keystroke logging technology to spy on his employees, the complaint said. By last December, Leesfield determined Leighton had obtained access to the firm’s records and confronted him.

“You work for me,” he yelled, according to the complaint. “This is my firm!”

Again, I pretty much yell something along those lines at somebody every single day.

In fact, in honor of Ira I just screamed those exact words at the lady who brought me a cafecito a few moments ago (of course she snickered and muttered something about my mother playing bingo or pingo or she's a penguin? -- I didn't really pay attention.)

You can read Leighton's complaint here.

Then we have Hank Adorno's response to a motion to strike his affirmative defenses in the bar proceedings, where he says Judge Peter Lopez must have known it was an individual settlement because otherwise we all would have had to have a fairness hearing. Even though it was for $7 million bucks!

(Nice negotiating, btw, Joe Arriola.)

I also enjoyed the part (page 9) where Hank explains that the only reason his firm did not pursue substitute class reps to carry on the class case after the individual settlement was because his partner Mitchell Bloomberg was undergoing aggressive treatment for lung cancer.

Also Sandy Bohrer has vouched for the individual settlement and Hank passed a polygraph test!

You can read the response here.

Sheesh -- and Friday's not even over yet, peoples.

Oh Well -- He Still Is Dating Elle MacPherson.

Hi kids, it's Monday and it will probably rain again!

Poor Jeff Soffer. The Turnberry heir picked the wrong time to invest in the Las Vegas condo market, picked the wrong time to give half of his hotel to the Saudis in order to drop a half billion in renovations to the Fontainebleau, and even had to deny having an affair with Gwyneth Paltrow.

Ok, he is apparently dating Elle MacPherson so things can't be all bad.

Still, now it looks like his hotel is about to lose a huge book of business -- the 2009 ShowEast, which is a major movie theater convention that requires at least 210 show booths.

The contract for the convention allegedly involved a booking of 4,772 guest room nights.

Turns out according to the counterclaim filed by Sandy Bohrer that the new ballroom can only fit 184 booths, too few to accomodate the specific needs of ShowEast.

Oops!

Because the ShowEast reps entered into the contract before the renovations were complete, they are arguing mistake and/or fraud and seeking various forms of rescission.

Jeff, through Orlando attorney Jameil McWhorter, is seeking $285k in cancellation fees.

Case is before Judge Ungaro, who set an initial planning and scheduling conference on June 26.

Keep those stairs handy, Jeff!

Note to Sandy Bohrer -- Tom Petty Was Right.

The waiting is the hardest part:

After an exhaustive genealogical search, Judge Cohen has been unable to conclude that she, too, is distantly related to Bob Martinez. Not only that, her efforts to get the parties to settle informally have been a bust. Then the defense had the nerve to rest. And she's got a tough reelection battle looming, with a vote on August 26. What to do, what to do:

Cohen said she'll wait to make a decision on a key remaining count until the Florida Supreme Court finishes work on a case involving the use of public money without a vote. The justices are on break until the end of August.

The announcement enraged the defense, which had won every key ruling until now but fears a delay could doom the team's long-sought dream stadium.

"My client's finances are hanging by a thread, we may not be able to hold on to August," bellowed Sandy Bohrer outside the courtroom.

I'm kidding, of course. Here's what he really said:

When Marlins attorney Sandy Bohrer told the judge she had an obligation to rule and city of Miami attorney Henry Hunnefeld said there was no guarantee the Supreme Court would rule anytime soon with three members set to retire by year's end, Cohen said she resented the pressure.

''This is about me doing what is intellectually honest. They're going to make this opinion before these justices leave. I have an obligation to wait,'' she said.

Sandy, if you think waiting a month for a ruling is an unaccountable outrage, don't try practicing in federal court.

But let's try to understand exactly what poor Judge Cohen is thinking here:

In an Escambia County case, the Supreme Court initially overturned almost 30 years of precedent by ruling that property-tax money used to pay off bonds needs to go to a public vote. Later, they agreed to rehear a motion and have yet to issue a final order. Cohen said she fears the justices may change their minds, and that she's trying to avoid having her decision overturned.

''The law is unclear; there's a lot at stake,'' said the judge. ``I think they're going to recede from it -- but they haven't done it yet.''

Ok folks, that case does seem kinda relevant. What's the harm in waiting a month so as to be guided by directly applicable precedent? Plus, Judge Cohen and Justice Quince are about to be pen pals:

Cohen said she will send a letter asking Supreme Court Justice Peggy Quince when the court will rule.

Aww! And there's more:

For about 90 minutes before she announced her decision Tuesday, Cohen had the court watch video of the Supreme Court wrangling over their ruling. ''What I hear is in fact the court may have gotten itself into a quagmire here,'' she said.

God I love Miami.

Smoke and Mirrors?

Reports are dribbling in regarding the Marlins case currently being tried before Judge Cohen. I've heard that Bob has been a bit scattershot but is improving, and that Sandy is playing to a nonexistent jury. Oy.

This report of yesterday's proceedings gave me a chuckle:

After a brief appearance by Jim Villacorta, executive director of Miami's Community Redevelopment Agencies, University of South Florida economics professor and author Philip Porter took the stand as a witness for Braman.

Porter detailed how studies he's conducted show the limited impact that sports facilities have on the public -- disputing the county's contention that a facility adds to local residents' quality of life.

But that was quickly questioned by attorneys for the county and the Marlins. ''Your honor, smoke and mirrors. He's an economist. He doesn't live here. He hasn't lived here for years,'' said Marlins attorney Sandy Bohrer, who represents The Miami Herald in unrelated matters.

With the witness seated, Braman attorney Bob Martinez began a slide show taken by Porter of two Tampa-area professional stadiums -- one for baseball, another for football -- showing poor conditions in the surrounding area.

PURPOSE OF SLIDES

It was meant to show how building a ballpark in Little Havana would offer little for the community.

But the pictures were quickly dismissed as evidence after strenuous objections from Assistant County Attorney David Hope and Bohrer -- when it was discovered they were shot after Porter's deposition was taken.

What the hail is happening here? First, there's no rule that an economist needs to "live" in a particular area before rendering an expert opinion on the potential impact of an economic development on that area. Good lord, Sandy, if that's the best you've got on this guy you better keep trying.

Second, why the hail were these photos not part of this guy's expert report? And btw you don't have to go to Tampa to prove his point -- look at how the "quality of life" improved after they built the Miami Arena, or look at the quality of life in Miami Gardens after Joe Robbie got built. What a crock.

I remember taking the Metromover after work to see the Panthers play, throwing fake rats, all that crap. Now it feels like a distant, forgotten memory of the future, a Jetsons vision of what downtown could have been.

Bruce Greer to the Rescue?

I told you no one wants to try a case in July. It seems Judge Cohen is urging the parties to mediate and settle the Marlins stadium case, and is postponing the trial in order to get a deal done:

Instead, she ordered the parties to try to reach a settlement out of court.

''We will resume Monday morning,'' Cohen said.

With those words, attorneys for Miami, Miami-Dade County and the Florida Marlins -- and their courtroom foe, auto dealer Norman Braman -- left the courthouse in a bid to resolve the impasse.

Hanging in the balance is the future of a plan to build a new baseball stadium in Little Havana and spur billions of dollars in other urban projects in Miami.

''If we can work something out for the community, that's my goal,'' said Braman, the 75-year-old billionaire who is fighting the plan to build the Marlins a $609 million baseball stadium and parking garage using mostly tourist tax dollars.

His contention: Government is planning to improperly use public dollars targeted for slum and blight. Officials counter that the so-called megaplan will spark a vital economic rebirth that will benefit Overtown as well as build a new stadium.

County Manager George Burgess had been expecting to take the stand Friday. Now, with a judicial nudge to settle, Burgess was asked whether he's hopeful a deal will come.

''You always want to remain optimistic,'' he said.

He said a settlement would save the community time and money, as local government and Marlins officials are racing to complete a new 37,000-seat stadium to open for the 2011 season. Braman's lawsuit is the biggest roadblock remaining to that vision.

Cohen's Thursday afternoon order may indicate an accord is in sight.

Some close to the mediation said items being discussed included the possibility of building a community center near the planned ballpark, or awarding more public access to the facility. Such moves may help satisfy Braman's quest for more public benefit from the megaplan.

Others said the standoff -- being mediated by former judge Bruce Greer -- hangs on whether the Marlins will give back some of the concessions the team received in December's Baseball Stadium Agreement engineered by Burgess.

Though the county would own the stadium, the Marlins would receive all monies from its naming rights, which to some teams is worth hundreds of millions of dollars.

This is a smart move all around. Poor Judge Cohen got stuck with this summer turkey, thanks to an attenuated conflict issue, and surely does not want to deal with this if she doesn't have to.

Bruce is a great choice for mediator -- a respected lawyer, businessman, developer etc. Is there any reason this man was not made a federal judge?

The community owes a thanks to Braman and his attorneys. It's just another example of how, in the absence of a motivated multimillionaire willing to put up huge amounts of cash (or where appropriate, the class action device), the government cuts deals that routinely go unexamined and business continues as usual in this corrupt, mismanaged town.

Dave, you'll soon be back to your weekly crappy movie reviews, and all will be right with the world.

Trial in July

Not quite "Moonlight in Vermont," in fact does anyone really likes the sound of that phrase -- "trial in July," sorta like "prostate is enlarged" -- something you just don't want to hear. Anyways, our boy Billy Shields does a smart curtain-raiser on the Marlins trial set for bench trial before poor Judge Cohen on Thursday:

What will happen in the highly publicized trial set to start Thursday is anyone’s guess, but most of it will center on the baseball stadium.

Cohen devised an interlocking burden of proof for the bench trial.

Braman bats first.

Oh Billy, Billy oh Billy, say it ain't so -- a trial about a baseball team and you're going for the "at bat" imagery. I hope your editors made you put that one in. He continues:

His battery of lawyers, which include Coral Gables solo practitioner Gonzalo Dorta and Colson Hicks Eidson partners Roberto Martinez and Paul C. Huck Jr., must convince the judge that the private interest served by the stadium deal would serve a substantial private commercial interest.

If Braman can prove that, the onus shifts to the governments and the Marlins, who must prove to Cohen that the stadium deal was approved with the interest of a “paramount public purpose” in mind.

This doesn't make all that much sense, but assuming these burdens of proof are accurate, I'm betting Braman sustains his burden and Sandy and his bullpen does not. BTW, when is Scott Ponce finally going to get some ink? Sandy, step aside and let your star slugger take a turn at bat (there I can do it too Billy)!

Those involved or those observing, please send your reports my way -- anonymity guaranteed.

Judge Echarte Is Related To Someone. Or Something.

In a bombshell dropped only days before trial, Bob Martinez filed a motion to recuse Judge Echarte in the Miami Megaplan suit, and the Judge granted the motion:

Miami-Dade Circuit Court Judge Pedro Echarte Jr.'s mother is first cousins with attorney Bob Martinez's sister-in-law. The judge signed the recusal order from the high-profile case after Martinez, representing auto dealer Norman Braman, requested he no longer oversee it.

The Braman team's legal move came after a series of court decisions have gone against the millionaire businessman -- and in favor of the city, county and Florida Marlins, who would benefit from the slate of public-works projects Braman is trying to stop.

''I'd say Mr. Braman thought he was going to lose,'' said Marlins attorney Sanford Bohrer -- who represents The Miami Herald and other media in other matters.

Bohrer called Martinez's request ``the weakest motion to disqualify I've ever seen.''

Martinez said the rulings played no part in his request, writing that the judge should remove himself ``because of the court's desire to ensure that no one could question its impartiality in hindsight.''

Martinez, a former U.S. attorney, learned of the relationship Tuesday evening from his brother, and said he confirmed it Wednesday. ''In order to avoid any issues, we thought the prudent thing to do was to file a motion and bring it to the court's attention,'' he said.

Are you kidding me? It pains me to say this, but Bohrer is right -- that motion is a crock. And why did Judge Echarte grant it? My guess here is that Martinez didn't think the motion would be granted, but wanted it in his pocket for appeal. The timing certainly is curious, to say the least.

Did Judge Echarte not want to preside over this trial, because otherwise the prudent thing to do would have been to deny the motion and allow Martinez to take an interlocutory appeal, which would have been denied. Wow. While Echarte goes away on his vacation, the case now goes before poor Judge Jeri Beth Cohen, who is in the midst of a tough reelection campaign.

This is a case of hot potato -- surely Judge Cohen's mother's sister's second niece twice removed is related to someone on the trial team? For her sake I hope so.