Sunday, August 28, 2011
Monday, August 8, 2011
The denial of a motion to amend is reviewed for abuse of discretion.
See Noble v. Martin Mem’l Hosp. Ass’n, 710 So. 2d 567, 568 (Fla. 4th DCA 1997). Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be given freely when justice so requires. In addition, courts “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So. 3d 883, 885 (Fla. 4th DCA 2009)(quoting Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003))(emphasis added).
Hutson v. Plantation Open MRI, LLC, No. 4D10-775 at 3 (Fla. 4th DCA Aug. 3, 2011).
Tuesday, August 2, 2011
In Estate of Milanese v. City of Boca Raton, 36 Fla. L. Weekly D1551 (4th DCA 7/20/11), the plaintiff represented the Estate of Peter Milanese. Peter was run over by a train after the City of Boca Raton's police officers took the intoxicated Milanese into custody, but then released him from the jail shortly after without ensuring he got into the taxi the officers had called for Milanese. Instead of getting into the taxi, Milanese apparently decided in his inebriated state to rest next to the nearby train tracks. You can guess what happened next.
The majority reversed the trial court's dismissal of Milanese's suit against the City for wrongful death and negligence. The majority held that, based on the facts alleged, the officers had created a zone of risk to Milanese once they took him into custody. Effectively, they held that the city owed Milanese a duty once it took him into custody and arguably that duty applied to when the city let Milanese out of its custody. Thus, Milanese's suit should proceed.
The dissent, on the other hand, asserted that a precedent which addressed Section 1983 liability (Lindquist v. Woronka, 706 So.2d 358 (Fla. 4th DCA 1998) held that, in circumstances like this one, no liability attached to the city or its officers.
The majority discusses state tort liability, and the dissent addresses federal constitutional liability. State tort liability, of course, is capped at $100k/200k. No such cap applies to federal constitutional liability.
I think it's interesting that the dissent would conflate federal 'tort' liability with state tort liability. These are two very different animals in the case law. I suspect the dissent would have carried the day if the plaintiff had brought this case as strictly a constitutional one. The case shows how picking the right theory or theories of liability is crucial when beginning your case.
Monday, August 1, 2011
With all due respect to Martin County School Board member Michael Busha: BE QUIET during public comment at School Board meetings.
Public comment is for the public, not School Board members, who are afforded their own opportunities to speak.
Busha's behavior at a recent board meeting was unprofessional and inappropriate. Moreover, it sends an unmistakable message to other public speakers who might be hesitant to address the board: Venture to the podium at your own risk. If Busha doesn't like what you have to say, you may be called out and put on the spot.
According to the article, Busha was sensitive to what he perceived as improper questions from the public related to the circumstances surrounding a former administrator's loss of employment. School Board attorney Doug Griffin correctly noted that a public speaker's viewpoint should not affect whether that speaker is allowed to speak. If one can speak, then all can speak. Kudos to Doug Griffin, and kudos to Rich Campbell for bringing this topic to the community's attention.
Wednesday, May 25, 2011
You probably have certain habits you follow before appearing in court for a meaningful hearing. You become familiar with the court and the judge. You watch other court proceedings before the same tribunal. You may talk to the bailiff and the court clerk about the judge’s idiosyncrasies. Certainly, you arrive at the courtroom or chambers with plenty of time to spare before your hearing. But forgetting one important but occasionally overlooked step can reduce your chances of success. Before that important court date, double-check your citations.
Justice Antonin Scalia and legal writing expert Bryan Garner both emphasize the importance of checking your citations before a court appearance in their recent book, Making Your Case: The Art of Persuading Judges. They write: “How embarrassing to learn from the court that one of your leading cases has been reversed on appeal or overruled! That should never happen.” They suggest updating your research a day or two before the hearing, or having a junior colleague or trusted paralegal do the updating. Far be it for me to question the wisdom of a Supreme Court justice, however, I suggest doing the update yourself. After all, you are the one with egg on your face if the court has caught a change in the law that your trusted associate or paralegal missed.
“Check yourself before you wreck yourself,” no less a legal authority than movie star Ice Cube rapped many years ago. I don’t believe he was talking about double-checking the law before your next hearing. Nevertheless, best to heed his advice so as not to wreck yourself – and your client’s case – by failing to cite good law the next time you appear in court.
This article will appear in the June 2011 Martin County Bar Association Sidebar.
Saturday, April 30, 2011
We readily fall into the trap of exaggeration as attorneys because we believe in our case. Our client is right, our cause is just. My opponent’s argument is not just wrong, but sanctionable. Keep in mind that the Court is not on retainer. The parties come to the Court on equal footing, and it is the Court’s role to remain level-headed. If the Court perceives that you have to exaggerate to make your point, the Court may conclude that you feel your point – underneath the exaggeration – must not be all that persuasive. If you found your point persuasive, the thinking goes, then why would you dress it up in hyperbole?
Better to understate your point. The Court will appreciate your decision to let the facts and law do the talking. As Professors William Strunk, Jr. and E.B. White write in The Elements of Style, “A single overstatement, wherever or however it occurs, diminishes the whole, and a single carefree superlative has the power to destroy, for the reader, the object of the writer’s enthusiasm.” Unless you intend to destroy your own argument before your adversary has even raised his pen in response, heed Strunk and White’s advice and do not exaggerate when making your client’s case.
Wednesday, March 30, 2011
The MCBA’s Appellate Practice Committee currently offers two different types of pro bono assistance to fellow Bar members. It’s probably time for a reminder about both programs.
First, we offer a moot court program for any local attorney with an appeal set for oral argument. We set your case for a practice oral argument, or moot court, before a distinguished panel of local attorneys who happen to specialize in appellate law and are members of our appellate practice committee. We set your practice oral argument relatively close in time to the actual oral argument such that you can take any advice and incorporate it into your actual presentation. Moreover, before the moot court the committee members will review the briefs so as to be up-to-speed for the faux argument, and one member will even prepare and serve as opposing counsel at the practice oral argument. Several members of the Bar have utilized this program, and all expressed appreciation for the support and assistance. If you are interested in participating in this program, let me know and I will provide you with the necessary forms to fill-out so as to ensure the committee members who participate do not have a conflict.
Our second program involves providing pro bono assistance to the 19th Circuit Public Defender’s Office on criminal appeals from County to Circuit Court. Members of the Appellate Practice Committee have assisted Diamond Litty and her office with four appeals to date. We recently had our first successful outcome; the State Attorney elected to dismiss all charges in one of those four cases after reading the Appellant’s Initial Brief drafted by an Appellate Practice Committee member. Two more appeals currently remain pending. If you are interested in participating in this pro bono effort, contact me and I am sure that we can find an appeal for you to handle.
Both of these programs have been well-received but have room to grow. Do not hesitate to ask for help from the first program, and likewise don’t hesitate to join us in assisting the Public Defender’s Office and its clients via the latter program.
This article appeared in the April 2011 Martin County Bar Association's Sidebar Magazine.