An Actual Heartwarming Story!

Lately we've been covering a lot of crazy cases, sanction motions, judges going wild and other assorted South Florida daily atrocities, so it's nice to see lawyers and judges doing something nice for a change:

Miami-Dade County Teen Court Program, under the administrative leadership of the Miami-Dade Economic Advocacy Trust, trained a new wave of volunteer lawyers, bailiffs, clerks, and jurors during its annual summer Youth Volunteer Attorney Training Program and second annual Mock Trial Competition.

The training was spread over three days in July and August in the Moot Courtroom at St. Thomas University School of Law, 16401 N.W. 37 Ave. 

The students, from area middle and high schools, were greeted the first day by Douglas E. Ray, St. Thomas University School of Law dean and law professor. The students received training for courtroom trials sanctioned by the program’s volunteer training guidelines, which educated them in various facets of the judicial process.

The mission of Miami-Dade County Teen Court is to advocate and create opportunities for youth to develop into responsible citizens.
 

The judges helped the students sharpen their courtroom techniques, etiquette and other skills, as well as learn law terminology and courtroom decorum. 

Participants received 24 hours of community service credit for attending the classroom training sessions.

And let's single out some of the folks who committed their time and energy to the success of this project:

Kelly Charles-Collins, Stacy Cleveland and Ray McGee. Volunteer attorney coaches included Olanike Adebayo, Todd Bass, Miesha Darrough, Marcus Griggs, Sherria Williams and Jennie Wingad, as well as state Rep. Cynthia Stafford, who participated as one of the volunteer judges for the first half of the competition. 

See, we're not all bad!

Inquiry Concerning a Judge.

Boy that's an ominous title for a Florida Supreme Court opinion, and this one issued today deals with Broward County Judge Dale Cohen.

If you don't recall the charges, here's a refresher:

The charges arose out of a hearing on a motion for disqualification that was filed on August 6, 2009, by an attorney appearing before Judge Cohen. The motion alleged the existence of a conflict between the attorney and Judge Cohen‘s wife. At a hearing on the motion, Judge Cohen called his wife as a witness to refute the allegations in the motion. Judge Cohen later held additional hearings in which he questioned the attorney‘s clients and threatened to file a complaint against the attorney with The Florida Bar.

Ok, so holding a hearing on a recusal motion and calling your wife as a witness -- pretty pedestrian for Broward -- what exactly did the Judge do wrong?

Pursuant to rule 2.330(f), Judge Cohen was required to either grant the motion for disqualification or to deny it as legally insufficient. Judge Cohen testified before the Investigative Panel that he believed the allegations in the motion were exaggerated. During lunch, he asked his wife to come to the courtroom with the intent of calling her as a witness. When court resumed, Judge Cohen called his wife to the witness stand over counsel‘s objections and questioned her regarding the facts set forth in the recusal motion. In doing so, Judge Cohen forced counsel to place his own credibility against the credibility of the judge‘s wife. Judge Cohen acknowledged in his testimony that he violated the canons by allowing his wife to testify as a witness and in not following the law.

I love the explanation by Judge Cohen -- I was just trying to keep things buddy-buddy, we're talking Broward here:

Judge Cohen explained that he held the hearing in order to remain on friendly terms with Melnick and to resolve what he believed to be a misunderstanding between Melnick and his wife. Judge Cohen thus allowed his conduct on the bench to be influenced by social and family relationships, in violation of Canon 2B.

Well if that's now illegal we're all screwed.

3d DCA -- If You Screw Up, Screw Up Big!

Time to bunker dive:

Tricam Industries v. Coba:

Judge Rothenberg reverses a plaintiff jury verdict in a negligence action and orders the trial court to enter judgment for the defendants, all based on an "inconsistent verdict."

Problem was, the defendants never objected to the inconsistent verdict below, and the jury was discharged.

Problem solved -- if the inconsistent verdict is so fundamentally screwed up, so glaring and so obvious you'd have to be a complete idiot to miss it (my paraphrase), then it's ok you screwed up as a lawyer and completely missed it.

Au contraire, says Judge Schwartz:

While I agree with the rest of the opinion, I disagree in two fundamental respects with the court’s treatment of the “inconsistent verdict” question. In my view:
a) The appellant waived the right to complain of any inconsistent verdict because of its failure to request that the conflict be resolved by the jury after its alleged flawed verdict was returned.
b) Even if this were not so, the appropriate remedy is not, like the majority does, to resolve the conflict in favor of appellant but a new trial so that a jury and not the court may decide the question.

So go big or go home!

Spencer v. EMC Mortgage:

Is it pretty normal for a bank to wait thirteen years to foreclose on a defaulted mortgage?

Not really, and Judge Salter dismisses for lack of prosecution among other procedural deficiencies.

Judge Schwartz has a hold-your-nose special concurrence:

Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997. While it therefore pains me deeply to do so, I concur in the reversal5 of the summary judgment of foreclosure against her.

And here's footnote five:

In the first incarnation, this passage read “I feel that I must dissent from the affirmance. . . .” See De Leon v. Great Am. Assurance Co., 78 So. 3d 585, 586 n.1 (Fla. 3d DCA 2011)

You say dissent from the affirmance, I say concur in the reversal, let's call the whole thing off!

Once More Unto the Settlement Offer Breach, My Friends!

Did you know settlement offer law in Florida is hopelessly screwed up and has been for a long time?

Then you haven't been paying attention!

Today's installment is an effort by the mighty 11th to clarify a common defense tactic -- picking off a statutory claim by offering one dollar more than the maximum statutory damages, hah hah you don't have standing anymore because we offered to make you whole.

Anyway, it was before Judge Ryskamp, involves FDCPA, and here is how it was framed:

Appellants Anthony W. Zinni, Blanche Dellapietro, and Naomi Desty appeal the district court’s dismissal of their complaints for lack of subject matter jurisdiction. In each case, an Appellee2 sent an e-mail offering to settle an Appellant’s FDCPA case for $1,001—an amount exceeding by $1 the maximum statutory damages available for an individual plaintiff under the FDCPA.3  Appellees also offered attorneys’ fees and costs in each case, but did not specify the amount of fees and costs to be paid. Appellants did not accept the settlement offers. The district court subsequently granted Appellees’ motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), holding that the offers left Appellants with “no remaining stake” in the litigation. The district court then dismissed Appellants’ complaints with prejudice. We conclude the settlement offers did not divest the district court of subject matter jurisdiction.

The reason?

Simple, kids -- you need to include an offer to have judgment entered against your client, too:

The district court erred in finding Appellees’ settlement offers rendered moot Appellants’ FDCPA claims because the settlement offers did not offer full relief. See id. Each of the Appellants requested that the district court enter judgment in his or her favor and against an Appellee as part of the prayer for relief in the complaint. Appellees’ settlement offers, however, did not offer to have judgment entered against them. Because the settlement offers were not for the full relief requested, a live controversy remained over the issue of a judgment, and the cases were not moot. See Friends of Everglades, 570 F.3d at 1216. 

A judgment is important to Appellants because the district court can enforce it. Instead, with no offer of judgment accompanying Appellees’ settlement offers, Appellants were left with a mere promise to pay. If Appellees did not pay, Appellants faced the prospect of filing a breach of contract suit in state court with its attendant filing fees–resulting in two lawsuits instead of just one.

BTW, the 11ith noted that the Appellants' argument -- successfully adopted by the 11th -- was dismissed by the district judge as "nonsensical."

Guess that's why they have appellate courts?

"If It Bends, It's Funny. If It Breaks, It's Not Funny!"

I'm a huge fan of Judge Altonaga and this order is an example why.

I love her understated yet very logical and pointed way of explaining basic principles of law to the parties.

Here she is on how you prepare a statement of facts, or dispute same, for an sj motion:

The Court notes that in responding to Plaintiffs’ Statement of Undisputed Material Facts, Defendants do not expressly admit or deny any of Plaintiffs’ statements, but rather provide the Court with a list of facts through which the Court must sift. (See generally Defs.’ Resp. SMF). To the extent any listed fact does not expressly oppose Plaintiffs’ corresponding fact, Plaintiffs’ fact will be deemed undisputed. Additionally, the parties include several facts within each numbered paragraph of their respective statements of facts. (See generally Defs.’ SMF [ECF No. 57]; Plf.’s Resp. SMF [ECF No. 75]). To the extent that any party fails to direct the Court to the record evidence in support of its asserted facts (or its reasons for disputing an opposing party’s asserted facts) contained in each sentence, the Court does not consider those assertions in deciding these motions. See FED. R. CIV. P. 56(e)(4).

And here she is explaining why the defendants can't prevail on a motion for summary judgment based on a "frivolity" standard:

Defendants first argue that summary judgment should be granted in their favor because the suit is frivolous. . . . As an initial matter, Defendants fail to identify what standard the Court should apply to determine frivolity, which they must do to prevail on their summary judgment motion.

Wait wait I know:

Or maybe this is a better example?

Now that's funny!

"Deep Cuts" With Judge Fay!

Sure we've seen our learned friend Magistrate Judge Goodman reference Tom Petty, Elvis, Keith Urban and others in the course of issuing opinions, and even Judge Carnes gave it a try, but Judge Fay takes it to another level by going deep, way deep and way back with this musical reference:

On July 23, 2009, Connie Strickland had been “working on the railroad / All the live-long day.” 1 In fact, he claims he was working his customary twelve-hour shift when, towards the end of that shift, he suffered a massive shoulder injury as a result of a faulty handbrake.

And here's Judge's Fay citation (note to the wordy):

1 A popular American folk song, the first published version of “I’ve Been Working on the Railroad” seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996).

What, nothing about the recording studio where it was first cut?  What about how high it charted in the UK?  Who played bass on the original version? Where can I find John Denver's cover of this classic?

Come on, these are basic musical reference questions we expected answered down here.

Stormwatch!

It's true the storm will have passed us by 6 today but no matter -- everyone now has another day to kill:

During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno.

In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court's website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements

Please note that if the Court's website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

 Stay safe and dry everyone!