3d DCA Watch -- Relation Back to the Future!

Hi kids, the bunker denizens have spoken thusly:

Kopel v. Kopel:

Hey, how cool is it that the appellant is named Bernie Kopell?

Oh, also the 3d reversed a $5 million jury verdict based on a faulty application of the "relation back" doctrine.

Florida Diversified v. Simon Roofing:

Shocking -- mass confusion over how to apply the offer of judgment statute, here in a situation where appellate attorneys' fees were previously awarded:

In a prior appeal from this same underlying case, FDF filed a motion for appellate attorney’s fees based on the same proposal for settlement now at issue. In the prior appeal, Simon Roofing, the defendant, objected to FDF’s motion for appellate attorney’s fees based on the proposal for settlement, arguing that FDF made the proposal in bad faith. This Court, after considering the arguments and the record, ultimately granted FDF’s motion for appellate attorney’s fees. Simon Roofing then filed a motion for rehearing, raising the same arguments now raised in the instant appeal, and suggesting that they had been overlooked by this Court. Again, this Court rejected Simon’s arguments, and denied Simon Roofing’s motion for rehearing.

Accordingly, FDF’s entitlement to attorney’s fees based on its proposal for settlement became the law of the case.

Jones v. Rizzo:

Practice note -- when asserting "excusable neglect," you should provide some sworn evidence.

Bank of NY v. Reyes:

No such thing as a cause of action for "attempted wrongful foreclosure."

Wells Fargo v. Aristo:

Not good when Judge Salter writes something like this:

Then-counsel for Aristo led the trial judge into error.

The Judge also wistfully "relates back" to a simpler time, when opposing counsel would get drunk together at Sally Russell's and settle cases with some purely hetero grabass and a shot of whiskey lawyers would actually call each other:

At the risk of viewing professional courtesy through rose-colored glasses, we can also recall a day when counsel appearing without opposition for a hearing on an obviously-contested matter—one in which the contending pleadings each sought priority to a six-figure sum of money—would first place a telephone call to opposing counsel to confirm that some personal emergency or postal glitch had not occurred.

Sadly, your honor, those days appear gone for good.

Does This Remind You of Anyone You Know?

These lyrics seem so apt for some reason this morning:

Now he worships at an altar of a stagnant pool
And when he sees his reflection, he's fulfilled
Oh, man is opposed to fair play
He wants it all and he wants it his way.

Gotta love opposing counsel!

Good News For New Lawyers -- You Can Help Others!

Are you really sure you want to go to law school?

That's the message of incoming dean Patricia White of the UM School of Law, in this interesting DBR article on the future of the profession:

Issues affecting the legal industry are serious enough that White wrote incoming first-year law students encouraging them to defer admission for a year, partly because a larger than expected number of deposits arrived from students who plan to attend this fall because of the recession.

White said the letters also were a way to get students to carefully consider why they want to attend law school and if the opportunities when they graduate line up with their career expectations.

“Students graduate with a large amount of debt and sometimes unrealistic expectations of what the job market is going to be,” she said. “They think that everyone is going to earn a lot of money. When you look at the statistics, a relatively small percentage of people make the large salaries.”

Wow -- more students enrolling due to the recession, and the law school is telling them to rethink whether or not they really want to go?

I did like this part of her speech:

The legal industry is still going to need new lawyers, but White said the strongest needs likely will be concentrated in areas like the public sector where the pay isn’t high.

“We do need more lawyers that help the underserved,” she said. “If you want to come to law school to help the underserved and you don’t care about making a lot of money, that’s great. Make that decision with your eyes open, and decide how much you can afford to borrow to do that.”

Wouldn't that be something if difficult economic times forced more lawyers to help those who need it the most?

Related -- does it still count as a mitzvah if you are helping people out of necessity?

Rachlin Merges; Older Male Judges Discuss What Women Attorneys Are Wearing

Many of us have hired these guys as experts over the years, and I see the firm is merging and changing its name:

South Florida's eighth-largest accounting firm, Rachlin LLP, is merging with Marcum & Kliegman LLP, the largest accounting firm on New York’s Long Island.

Newsletter Inside Public Accounting ranked Marcum & Kliegman the nation's 23rd-largest accounting firm for 2008, with net revenue of $123.26 million. It had a 28 percent growth rate.

Miami-based Rachlin ranked 81st, with $36 million in net revenue and a 3 percent growth rate.

After the June 1 merger, the combined firm will be known as Marcum in the Northeast, and Rachlin will change its name to MarcumRachlin, a division of Marcum LLP.

Laurie Holtz, Barry Mukamal, all good guys who have helped many of us out on plenty of occasions.

Congrats, fellas!

Switching gears but I couldn't hold this for Friday, what do you make of this discussion at a recent 7th Circuit Bar Association meeting:

Noting that there weren't many women in the audience to hear her message, Lefkow suggested that lawyers address the "delicate issue" with female colleagues at their firms.

As it turned out, one of the male judges on the dais with her, and the male lawyers in the audience at the Indianapolis meeting, had plenty to say right away about the issue. It had been bothering them, too, perhaps in a slightly different way.

Women come into court wearing "skirts so short that there's no way they can sit down and blouses so short there's no way the judges wouldn't look," said Judge Michael McCuskey, chief judge of the U.S. District Court for the Central District of Illinois and a panel member.

Murmuring in the audience quickly rose into loud comments and laughter, with one female voice calling for someone to help save McCuskey from himself. Bankruptcy Judge Benjamin Goldgar, who presides in the Northern District of Illinois, came to his rescue from the audience, saying that McCuskey shouldn't be made to keep quiet about the matter because he too considers the issue "a huge problem." Sometimes it's so difficult that Goldgar said he wishes he could tell the female lawyer standing before him: "I'd really like to pay attention to your argument."

"You don't dress in court as if it's Saturday night and you're going out to a party," said Goldgar from the audience. "Dress as a serious person who takes the court seriously."

First of all, I've been to plenty of bar lunches and judicial events, and I've never heard talk like that at our conferences here in South Florida. Step it up, people!

Second, how many male lawyers do you know who have crappy suits, mismatched ties, or sometimes barely put on a jacket and scruffy shoes to shuffle down to Flagler? Yet these folks are fashion arbiters for women attorneys?

I'd like to pay attention to your argument too, but honestly you look like a total schlub who just woke up from a weekend bender.

And we all know the 7th Circuit has an oddball bench, but come on, guys.

A women is entitled to include whatever elements of their femininity they elect to incorporate into their overall professional appearance. Or not.

Same is true for a guy.

Of course some outfits are inappropriate in a professional context, no matter who is wearing it.

But a hint of our masculinity or femininity has long been a part of dressing for success.

Don't fear it -- embrace it.

You Are Needed Now.

Oh boy, so it's Wednesday.

Remember when musicians used to get up on stage and play? And they were pretty good musicians? And we were all entertained by this?

Yep, those were the days.

So I see my friends Rick Freedman and Carlos Martinez are holding a press conference at 11:30 this morning:

On Wednesday, April 22, 2009 at 11:30 AM, Eleventh Judicial Circuit Public Defender Carlos Martinez will hold a joint Press Conference with Florida Association of Criminal Defense Lawyers (FACDL) - Miami Chapter President Rick Freedman to announce FACDL-Miami's participation in a Pro Bono Initiative. The Press Conference will take place at the Public Defender's Office.

Beginning this week, more than 35 experienced criminal defense attorneys who are members of FACDL-Miami, will begin accepting felony cases from the Public Defender's office, as part of a volunteer (pro bono) attorney initiative to help Miami-Dade's poor. The initial response to the program has been fantastic and veteran lawyers with nearly 900 combined years dedicated to the legal profession in our community including Eugene Zenobi (39 years), Jack Blumenfeld (42 years), James McGuirk (42 years), Joel Robrish (40 years), William Aaron (37 years), Bruce Fleisher (36 years), Paul Morris (34 years), Bruce Alter (33 years), Richard Sharpstein (33 years), Alan Greenstein (32 years), Leonard Sands (31 years), Samuel Rabin (30 years), Jeffrey Weinkle (30 years), Richard Hersch (29 years), Eric Cohen (28 years), Milton Hirsch (27 years), Dennis Kainen (27 years), Michael Catalano (26 years), Lawrence Kerr (26 years), Rick Freedman (25 years), Faith Mesnekoff (25 years), Phil Reizenstein (23 years), Hector Flores (22 years), Tony Moss (22 years), Roberto Pardo (22 years), Marjorie Alexis (20 years), Robin Kaplan, Beatriz Llorente, Marshall Dore Louis, Mark Eiglarsh, Arthur Jones, Joaquin Padilla, Jackie Woodward, Keith Pierro, Larry McMillan, Elizabeth Perez, Michael Mirer, and others have offered their services to this wonderful program.

The Sixth Amendment to the United States Constitution guarantees all accused persons the assistance of counsel for their defenses. If that protection is to have any real meaning, then the Florida Legislature must provide the necessary funds in order for Public Defenders throughout the State to effectively represent their clients.

The Florida Association of Criminal Defense Lawyers - Miami Chapter is aware of the critical situation that exists at the Public Defender's Office in the form of budget cuts and increasing caseloads. The result of this is that the attorneys in that office are handling too many cases and cannot be constitutionally effective in their representation of their current clients.

The legislature's answer to this problem is to create more crimes with new statutes, increase penalties for existing crimes and spend hundreds of millions of dollars to build more prisons. All of this results in more defendants being arrested, more cases being filed and an exponentially higher chance that an innocent man's freedom will be taken from him. In order for every accused American to have competent and effective counsel, the second branch of our government must stop ignoring, at budget time, the third branch.

This is a good thing. It's an example of how you can find meaning for yourself as a lawyer, of how you can contribute to being part of the solution instead of being part of the problem. Either that or you can go work for John Ashcroft.

It's no secret we are big fans of Carlos Martinez at this crappy blog, and for good reason: he's reasonably competent at what he does, and his heart is in the right place.

What more do you want from a public servant, particularly in this town?

As a civil litigator I was a strong proponent of his initiative to bring in bored, inexperienced, to-be-fired BigLaw associates to help out with the public defender's caseload. I know Rumpy and his merry crew of Shumified defense lawyers all derided this idea, but I think it's great.

Part of the criticism stems from a perception that criminal law is an elusive beast that can only be mastered by those in the know and who are conversant in the mystic arts.

It's certainly true that to be highly skilled at this speciality takes much talent and years of dedication.

But how about being mediocre or even slightly below average at it? You know what I am talking about.

Seriously, how hard is that?

Another part of the criticism stems from the perception that BigLaw attorneys are lousy trial lawyers and wouldn't know how to find a courtroom, let alone succeed in one.

Ok, fair point.

But the fact is these lawyers got their jobs because they are smart, capable, and quick learners. They succeeded at law school and are for the most part capable of schlepping their way through a motion to suppress hearing, assuming they get some training first.

Why not give them the training, plebes?

Things Are Tough All Over

Ok, so now I have to give the shoeshine guy at the courthouse a ten spot to get my shoes shined, the price of the remaining bottles of Malaccan gin is on the rise, and it's impossible for two to get out of La Loggia at lunchtime for under 50 bucks.

I can accept all that.

But now they've gone too far -- even the price of crack is going up:

A rage over a recent price hike in crack cocaine is what landed a man in jail on Tuesday night after he allegedly smashed a convenience store display in protest.

Gus Young Jr. told police he broke a Plexiglas counter partition and a DVD case at Dixon's Food Mart because the price of crack had gone up two-fold, according to a police report. He said he had $10 to spend on the drugs but was told the amount had hiked up to $20.

Decisions, decisions. What to do? I found this article about how to deal with economic anxiety pretty interesting. Basically, the author argues that you feel better by helping others:

For many people, however, the problem with subprime mortgages and the financial crisis won't push them into true poverty, but it will make them feel much poorer - and as a consequence, make them feel anxious and powerless.

If you're one of those people, there is a way that you can both help people living in poverty and help yourself feel happier: Give to other people.

One of the most important principles I've learned from my happiness research is that although we assume that we act because of the way we feel, often we feel because of the way we act.

Therefore, if you don't like the way you're feeling, take action in the opposite direction -- it sounds simplistic, but it's almost uncannily effective. If you're feeling poor, give something away. If you're feeling powerless, take control of something. Also, one of the quickest ways to make yourself feel better is to be GRATEFUL. It's hard to feel grateful when you're thinking about your 401K's drop in value; thinking about giving to people who are worse off will remind you of how much you have to be grateful for.

When we think of doing something to help people living in poverty, it's easy to think about donating money -- and to say, "Look, I'd like to help, but I can't afford to give right now." Or to think about donating time - and to say, "I'd love to volunteer, but I've got to focus on my job hunt."

When you tell yourself that you can't afford to give, you increase your feelings of panic and danger. If you find ways to give, you will show yourself that you have enough and more, that you can be generous, that you recognize that others have needs more pressing than your own - and that will make you feel better. This act doesn't have to be huge. I have a friend who puts all her loose change in a jar at the end of the day, and when the jar is full, she gives it to her church. It's not much money, but it's constant. She's done it for years, and by now, she's probably given away a fair bit.

Maybe you can't give money or time. But that doesn't mean you can't give.

Of course as lawyers we have many ways to give back, and we should and must. That's one of the obligations of our profession, and it extends beyond the $350 check you cut every year. It's pro bono, it's service hours, it's giving back to those less fortunate (and we know you machers all are very fortunate, and probably could even afford the crack cocaine price hike).

So find that angry WPB crack user, and give him the ten spot he so desperately needs to cover that unconscionable price jump -- you'll not only make his evening (assuming he remembers any of it), but you'll feel a lot better about yourself in the process.

Or I guess you could volunteer to take a pro bono case. Either way it's the thought that counts.

SFL Friday -- Sage Professional Advice: Don't Be a Di#k!

Well, I wanna be your lover, baby,
I don't wanna be your boss.
Don't say I never warned you
When your train gets lost.

That's the Bard talking, but he was onto something. Money money money, hours, status, wants, needs, desires, love, children. And of course that sexy young thing at Offerdahl's. How to fit it all in and sustain your practice?

How the hail do I know?

But an astute reader (thanks!) passed along this interesting article on how to be a happy and successful lawyer that makes for some good Friday reading.

Basically, the guy offers the following advice: don't be a di#k.

Alright, to be specific, he also says this:

First, be someone others count on. Most folks talk a good game; very few come through. Clients come to you because they have a situation they cannot solve on their own. Most are not looking for an analysis of the law. Most want you to solve a problem. So solve it, don’t add to their problem by being hard to find, by missing deadlines, or by simply describing their problem back to them. It’s like going to the dentist when you have a toothache. You want it fixed and you want it fixed now. That’s what a client wants every time they talk to you. Walk in with a problem, walk out with a solution.

What they want is someone they can count on to make their lives simpler, to accomplish what they want accomplished. If you can simply do that, you’ll be sought out as an extraordinarily effective lawyer. And there is a real difference in your sense of self between being simply a resource; somebody who knows the law, and the person that people count on to solve their problems.

Second - be an interesting person, for your own good and so that clients think of you as more than a lawyer. A decent definition of hell is a dinner party companion who is a first year lawyer on the day after his or her first trial. Law stuff is interesting mostly to lawyers. In fact, it’s real interesting to lawyers, so that’s what we talk about all the time, just like you talk about law school all the time.

Force yourself to do be able to talk about more than law - read books, go to movies, be part of politics, go to lectures. You’ll meet people, you’ll be able to talk about things that other people find interesting, and you won’t burn out on your job.

The horror stories you hear about associates working 2500 hours a year? You will be surprised when you see how much of that is self imposed. These young lawyers get caught up in the chase and find that what they’re doing more interesting than anything else- so they become that boring self absorbed dining companion. The world’s full of great people with jobs and hobbies that are just as demanding and just as fascinating as yours, (assuming you make yourself get a hobby). Learn about them. You’ll be happier and much more fun to be with.

Here is another obvious but ignored truth. Look out for yourself. Nobody cares about you like you do except maybe your parents, and you won’t be working for them. My late and very wise father used to tell me to not worry about what people were thinking about me, because they weren’t. They were thinking about themselves.

Your employer may have a mentoring program, but nobody is mentored into a success. Mentors are important, but they are only a resource. Accept that you are in charge of your success.

So if you think you need experience in an area, make it your business to go get it. Ask somebody; don’t wait for it to come along. Don’t wait for somebody to notice that you’re missing an important skill. Ask for a promotion - people aren’t watching what you do as carefully as you think or hope.

Also, determination matters. It matters more than intellect. The streets are littered with directionless geniuses with unexecuted good ideas. . Woody Allen had it pretty dead on when be said that 90% of success is simply showing up. You won’t suddenly have a great career. Nobody ever does. The secret is simple- great careers are the result of day after day deciding to do good work and being someone who others count on.

Be enthusiastic. Because we deal in rules, it’s real easy to fall into cataloging all the reasons something won’t work or why somebody shouldn’t do something. In fact, we lawyers take pride in being the first one to find fault with an idea. Makes us look smart. In my days as managing partner I would roll out a strategic initiative, and I could see my partner’s eyes starting to spin. Who would get the prize for being the first one to spot the flaw?

Clients want to do things - they don’t call you so they can not do things. They want to stay in the borders of the law, but they want to be told how to do what they want to do. And they want to know that you’re happy to be part of what they’re doing. There is no better way to end a client meeting than saying “This is going to be great” and to mean it. It’s fun to be charged up - to add energy to every conversation.

Trust yourself. You are a very bright person or you wouldn’t be here today. I think among the most important conclusions I came to as a young lawyer was that if I didn’t understand something, it was because the thing in fact didn’t make sense, not because I was stupid. Most of the times I’ve found myself in hot water it’s because I let a conversation continue past the point where I understood what was being said. And virtually every time I would say “stop, I’m not following this,” someone would come up to me after the meeting and say “Boy I’m glad you said that. I had no idea what we were talking about.”

Get involved. Organize the reunion or the bicycle race. Chair the church committee. Help people who have not enjoyed your good fortune. You have spent three years learning how to organize your thoughts, analyze a situation, and articulate action plans. Use those skills everywhere in your life. Stuff will get done, people will appreciate your initiative, and you will derive great satisfaction from making things better.

Here are my final two unappreciated but clearly true truths: The toughest lawyer is not the one who is the most obnoxious. Clients will say they want a tough son of a gun to make somebody life’s miserable, a real bulldog, etc.

Don’t be that person. It’s been my 100% uniform experience that the bulldog only adds time, expense, stress and confusion to an otherwise inevitable result. Even clients can’t stand them after a couple of months. You want to be tough? Have the best preparation on the facts, the law and the strategy. Judges care only about those things, not a whit for bluster. Bullies are jerks, they wreck the profession for everyone, and you can beat them every time.

And finally and hands down most importantly, and please pass this on to your friends and your children, because it’s really important — Be nice and have fun. Just doing that makes life better for everybody, mostly you.

Yeah yeah. Fine words and all, I'll think about that at my motion calendar next week, where I plan to go first even though it's not my motion; file a response the morning of the hearing; show up with two new cases to hand to the judge even though I made no copies for opposing counsel; misstate the holdings of contrary cases so I can skate by and get a favorable ruling; and then disagree after the hearing on what the Court exactly ruled upon. Mission accomplished!

I may duck out early for some important water activities, so if I'm not back to send off a nasty Friday afternoon letter and check in on you all, have a great weekend!