Treasure Coast Appellate Law

Moving On Up

2011-08-28T21:20:00.001-04:00

Greetings. I have moved this blog to my law firm's website. To find Treasure Coast Appellate Law going forward, please click here.

And thanks for visiting!

Leave to Amend Sought at Summary Judgment Hearing

2011-08-08T08:29:00.002-04:00

If discovery has shown you that a new cause of action better or alternatively makes your case than the counts in your present complaint, keep in mind that you should seek to amend the complaint. And don't think it's too late just because a summary judgment hearing is scheduled. As the Fourth DCA explained to us last week:

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).

Federal vs. State Liability for Torts

2011-08-02T10:30:00.004-04:00

Late last month, the Fourth DCA took on a case involving the tragic loss of life and the intersection of state negligence law with federal 42 Section 1983 law.

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.

Right to Speak at Public Meetings, Martin County School Board-style

2011-08-01T09:49:00.002-04:00

Rich Campbell of the Stuart News has a very interesting column about the right to speak at Martin County School Board meetings. From the column:

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.

Check Your Citations

2011-05-25T10:21:00.003-04:00

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.

Regardless of whether you practice before a supreme court or in county court, you will regularly submit legal authorities to that court to support your argument. Obviously, you would not have cited the case or statute you cited without initially checking it to ensure it was good law. But did you double-check that authority immediately before you arrived at court to argue the legal matter at hand?

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.

Do Not Exaggerate

2011-04-30T10:27:00.000-04:00

When writing for the Court, you need to win the reader’s trust. A writer earns trust slowly, but loses trust quickly. A single misstep calls into question every assertion that came before, and every sentence which follows. Exaggerating your point is an easy way to lose that trust forever – or at least as long as it takes for the Court to rule against you.

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.

This article appeared in the May 2011 Martin County Bar Association Sidebar.

Opportunities to Assist

2011-03-30T10:30:00.001-04:00

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 19^th 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.

Read the Law to Improve Your Writing

2011-02-28T10:33:00.000-05:00

I write fairly regularly about ways to improve your writing. But the best writing fails to persuade if it includes bad law. You already know about Florida Law Weekly and Westlaw. Those sources became well-known because of their reliability. Here are some legal websites you may not know that have proven themselves reliable to me. I recommend these sites because: 1) they are unfailingly interesting to read; and 2) they make keeping up with the ever-changing law a little less painful.

Howard Bashman's How Appealing website (howappealing.law.com) remains the granddaddy of regularly-updated legal blogs. Mr. Bashman practices in Pennsylvania and specializes in appellate law. He updates his site with links to the interesting state and federal opinions of the day, and has done so for nearly ten years. His pithy descriptions of the core issues of these cases give you just enough information to decide whether to click through and read the full opinion.

Florida appellate lawyers look to Matt Conigliaro's Abstract Appeal (www.abstractappeal.com) when they want a quick update on the most recent changes to Florida and 11th Circuit law. Conigliaro provides more in-depth analysis than Bashman, but still limits his analysis to bite-sized chunks that allow you to decide whether to go further with your research. Florida litigators will find Abstract Appeal a worthy addition to their regular legal reading list.

How Appealing and Abstract Appeal cover any opinion, and any issue – procedural or substantive, all areas of substantive law. Other legal blogs (“blawgs”) feature specific areas of the law, and you may want to familiarize yourself with the blawg featuring your area of practice. If you are a criminal practitioner, the Sentencing Law and Policy blog (http://sentencing.typepad.com) provides constant and in-depth commentary on both federal and state sentencing law, an area of the law that is in constant flux. I cannot think of a comparable civil litigation blawg; however, Tom Goldstein’s Scotusblog – the blog of the United States Supreme Court (http://www.scotusblog.com) – may come the closest to providing a go-to source for the interesting civil issues percolating in the courts. Goldstein does not limit the coverage to civil issues, but some of the best discussion of civil issues takes place – or is linked-to – on Goldstein’s Scotusblog.

So there you have it: some recommendations on legal websites worth your valuable time. I disagree with the wisdom that lawyers don’t have time to read blawgs. If you think it’s important to keep up with the law, then you should set-aside a bit of time to check out these blawgs, or perhaps other legal websites in your area of practice. We all know of times when a cite to the most recent Florida Law Weekly won an argument in court; similarly, I expect you will find a case via one of these blawgs that wins you the day in court in the future.

This article appeared in the March 2011 Martin County Bar Association Sidebar Magazine.

Judge Adams to be honored by Matthew Gilbert Alumni Committee | jacksonville.com

2011-02-08T08:27:00.002-05:00

Senior U.S. District Judge Henry Lee Adams, Jr. to be honored by Matthew Gilbert Alumni Committee | jacksonville.com. Judge Adams is a legend in North Florida, and with good reason. A judge who seeks to do justice.

Taking a Petition for Writ of Certiorari

2010-10-12T08:36:00.003-04:00

I write a column for the Martin County Bar Association's monthly newsletter each month. Here is October's column:

I am often asked about the availability of an interlocutory appeal after the trial court has given the party an adverse ruling. The avenues to challenge a trial court’s non-final order are surprisingly limited. Florida Rules of Appellate Procedure 9.030(b) and 9.130 set out the paths to follow if you want to take that non-final appeal. One of the most-used mechanisms to challenge a non-final order is to petition the appellate court for a writ of certiorari. See Fla. R. App. P. 9.030(b)(2)(A).

Certiorari is an extraordinary remedy available when a lower tribunal has acted in excess of its jurisdiction or otherwise departed from the essential requirements of law, and no other appeal route is available. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000)(citations omitted). A party seeking review of an interlocutory order by certiorari must demonstrate that the order is a departure from the essential requirements of the law and that the harm caused by the error cannot be corrected on appeal from the final judgment in the case. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987). If you can so demonstrate, then the appellate court issues the writ – it quashes the order you have contested.

Circumstances that sometimes allow for petitions for writ of certiorari include (but are not limited to) pretrial orders compelling discovery in civil cases, failure to follow pre-suit procedures per Chapter 766, orders that grant or deny a request to dissolve a lis pendens, and orders which grant or deny a motion to disqualify counsel. On the other hand, certiorari is not available to review a pretrial order denying a request for a jury trial, because the Florida Supreme Court has decided this is an error that can be corrected on direct appeal. See Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla. 1998).

The petition for writ of certiorari is an important, but limited, tool in the appellate practitioner’s toolbox. If you are unhappy with a trial court’s decision but a final judgment is not on the near horizon, consult the appellate rules to see if a procedural mechanism allows for interlocutory review. Next month I will write about other paths to challenge a non-final order.

Daily Business Review: News Item

2010-08-18T12:40:00.001-04:00

Daily Business Review: News Item
From AP--

The Florida Supreme Court is hearing arguments in challenges to three proposed state constitutional amendments.

In each case Wednesday the state is appealing judges' decisions to remove from the Nov. 2 ballot an amendment proposed by the Legislature. The judges ruled ballot their summaries were inaccurate or misleading.

Amendment 3 would provide property tax breaks for first-time home buyers and lower a cap on assessment increases for businesses.

Amendment 7 would override anti-gerrymandering provisions in two citizen initiatives on legislative and congressional redistricting also slated for the November ballot.

Amendment 9 would prohibit government health care plans from requiring people to have insurance

S.D. Fla. Blog Shout Out

2010-08-17T05:23:00.000-04:00

David Oscar Marcus's S.D. Fla. Blog tracks local and national criminal law issues; "local" meaning Southern District of Florida area.

With Matt Conigliaro's excellent abstract appeal on indefinite hiatus, I think David's blog may take the title of best Florida legal blog. I recommend checking it out.

New First DCA Courthouse...

2010-08-11T09:44:00.001-04:00

is criticized as a Taj Mahal. Interesting.

speak up to remain silent

2010-06-02T06:35:00.004-04:00

To invoke your right to remain silent, you now have to explicitly say so. You can read the Supreme Court's newest Miranda-related opinion, Berghuis v. Thompkins, HERE. I intend to revisit this opinion, and relate it to two recent Fla. S. Ct. decisions, in the next few days. (By the way, that's Carmen Miranda in the photo.)

Third Time Better Be A Charm

2010-05-31T23:40:00.002-04:00

In Rodriguez v. Recovery Performance & Marine, LLC, 35 Fla. L. Weekly D1122 (Fla. 3d DCA May 19, 2010), a Sea-Doo purchaser sued his dealer (after the jet boat sunk) for violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). He sought consequential damages, rather than actual damages; actual damages would have been the difference between what he received (a poorly-working Sea Doo) and what he should have received (a working Sea Doo). As I noted, he sought consequential damages -- which in this case means he tried to use the failure of the Sea Doo to recover his outstanding loan amount, his down payment, and his prior payments. Since Florida's FDUTPA does not allow for the recovery of consequential damages, our intrepid Sea-Dooer was out of luck.

If you're wondering what the meaning of the title of this post is, so am I... no, it's actually pretty simple. Apparently the purchaser's attorney tried to amend the complaint in this case six times. The sixth attempt involved an attempt to plead breach of warranty, where a similar claim had been previously dismissed after the fourth amendment. Id. at D1123. Although a trial court must usually allow for amendment fairly liberally, in this opinion the Third DCA noted that after three amendments, "dismissal with prejudice is generally not an abuse of discretion." Id.

So in other words, all you plaintiff lawyers out there, you better get your ducks in a row by the time you seek your third amendment, if you haven't already done so. Otherwise, you may be sunk, like this unfortunate plaintiff's Sea Doo.

C.J. Roberts Issues End of Year Report on Federal Judiciary

2010-01-02T10:11:00.003-05:00

Chief Justice Roberts has issued his Annual Report on the State of the Federal Judiciary. Unlike previous years, he chose not to request pay raises for federal judges. C.J. Roberts may be learning how to be more political, it seems to me. Guess it comes with the job. In this economy, I think he made the right decision.

A Legend Retires

2010-01-01T09:28:00.001-05:00

Robert Morganthau, the longtime D.A. of NYC and the man upon whom "Adam Schiff" of Law and Order was based, has retired after 35 years. Growing up in New Jersey, the man was a legend even in the 1980s. That he served as long as he did is a testimony to the man's integrity and honor. Read about him HERE.

Mock Oral Argument Service for Martin County Bar Members Off to Great Start

2009-07-25T14:03:00.000-04:00

Hear ye! Hear ye! The Martin County Bar Association Appellate Practice Committee Moot Court is now in session. All rise ye who have business before the court!

As many of you know, the fledgling Appellate Practice Committee for the Martin County Bar Association began offering a mock oral argument program to the Bar earlier this year. Our first participants asked our for our assistance readying an oral argument scheduled to take place before the Third District Court of Appeal in mid-July, and our moot court held its first session the week prior to that argument.

Deb Nolan of Gary, Williams, Finney, Lewis, Watson & Sperando, L.P., and Lauri Waldman Ross, of Ross & Girten in Miami, prepared their co-appellees’ arguments and presented them to our esteemed judicial panel: Josh Ferraro of the Ferraro Law Group, Shelly Stirrat of Fox, Wackeen, Dungey, Beard, Sobel, Bush, & McCluskey, LLP, and Ed Sikorski, an experienced Michigan attorney who recently moved to the Treasure Coast.

The panel did not come into the oral argument cold. Rather, our three volunteers reviewed the briefs, the trial court pleadings, and a great deal of the record in order to be fully up to speed when Ms. Nolan and Ms. Ross made their arguments. Moreover, a courtroom was secured for the argument, and every effort was made to replicate the proceedings scheduled to take place officially a week hence before the three-judge panel in Miami.

After a lively question-and-answer period in court, all the participants moved on to a more relaxed setting (a law library) and enjoyed a light lunch while discussing the pros and cons of the arguments that had just been offered. Interestingly, I think all participants would agree that this post-argument review provided at least as much insight to the counsel as the oral argument itself. Plus, as Shelly Stirrat remarked afterwards – from start to finish the experience was fun!

This was our first moot court, but certainly not our last. If you have an upcoming appellate oral argument, or if you have a significant dispositive motion you wish to mock argue before the official hearing in the matter, do not hesitate to contact the Appellate Practice Committee at mark@garyappellatelaw.com for our assistance. We will forward you a form to fill out requesting that assistance. Submit the completed form as an attachment to the same email address or fax it to the Appellate Practice Committee, fax number 772-283-4996, “Attention: Mark Miller, Request for Mock Oral Argument.” After a conflict check, we will schedule a date for your argument. The members of the Appellate Practice Committee look forward to helping you with your next appeal!

Dignity, History & Humility

2009-06-18T12:02:00.000-04:00

Judge Dorian Damoorgian, one of the Fourth District Court of Appeal’s newest members, recently spoke at an appellate practice CLE regarding the characteristics of “the best lawyers” he has seen in his career. His thoughts are worth considering because: 1) they are timeless; and 2) he sits on the Fourth DCA and one day you may appear before him.

The best lawyers act with dignity at all times, according to Judge Damoorgian. Dignity includes dressing properly. “There’s no such thing as ‘Casual Friday’” for the best attorneys. The dignified attorney respects the institution of the courts; the attorney recognizes that if the public observes an attorney not respecting the courts (for example, by wearing jeans to court), the public will lose respect for the courts – and the law, as well.

Next, the best lawyers appreciate history. These attorneys read the Federalist Papers, the Constitution, and Martin Luther King, Jr.’s ‘I Have a Dream’ speech, in lieu of picking up the day’s newspaper. As Judge Damoorgian remarked, “when you’re dissatisfied with a client, or a case, take some time and read the Gettysburg Address – that will inspire you” about the practice of law as your chosen profession.

Lastly, the best lawyers always act with humility. The humble lawyer never criticizes another lawyer. When the humble lawyer wins a case, that lawyer tells opposing counsel “good job.” When the humble lawyer loses a case, that lawyer tells opposing counsel “good job.”

Act with dignity, know your history, and remain humble at all times. Advice that all of us can follow.

Appellate Practice Committee Offers New Mock Oral Argument Service to Martin County Bar Members

2009-06-01T14:00:00.000-04:00

How many times have you wished you could prepare for an upcoming appellate argument by presenting your argument to an independent and objective panel of attorneys to give you feedback and insight into your preparation for the real thing? Wish no more!

As a service to all members, the Appellate Practice Committee of the Martin County Bar Association will now offer a mock oral argument program. Josh Ferraro of the Ferraro Law Group, and Shelly Stirrat of Fox, Wackeen, Dungey, Beard, Sobel, Bush, & McCluskey, LLP, graciously volunteered to provide this service to all members of the Martin County Bar. I will round out the initial three-judge panel (we would love to have additional volunteers).

Conflict checks will be completed before the ‘judges’ review your case and prepare for the mock oral argument. Although other appellate practice committees charge administrative fees for this service, we will provide the service for free, while reserving the right to reconsider that decision at a later date depending upon the popularity of the program.

Any MCBA member requesting mock oral argument must obtain and complete the application form, “Request for Mock Oral Argument.” The information provided on the application will be used for administrative purposes and to determine the existence of any possible conflicts.

You may obtain the form by requesting it at mark@garyappellatelaw.com. Submit the completed application form as an attachment to the same email address or fax it to the Appellate Practice Committee, fax number 772-283-4996, “Attention: Mark Miller, Request for Mock Oral Argument.” Shelly, Josh and I look forward to helping you with your next appeal!

Fifth DCA Showdown in Tallahassee

2009-05-26T08:11:00.001-04:00

If you've read this forum for a while, you know I find the showdown between the Fifth DCA and Governor Crist fascinating. Here is an update:

http://blogs.orlandosentinel.com/news_politics/2009/05/supremes-react-skeptically-to-crists-court-fight-with-5th-dca.html

Supremes react skeptically to Crist's refusal to name a 5th DCA judge
posted by Aaron Deslatte on May 20, 2009 12:20:06 PM

TALLAHASSEE – Gov. Charlie Crist’s push to diversify the judiciary ran into a skeptical Florida Supreme Court on Wednesday, as justices seemed concerned the governor had exceeded his powers by not filling a Central Florida appeals court opening.

Crist has refused to fill a vacancy on the Fifth District Court of Appeal created last year by the retirement of Judge Robert Pleus of Windermere, arguing the all-white slate of six nominees he was given needed to include more racial diversity.

Crist’s move enraged many in the legal community who fear that if governors are allowed to reject the names submitted to them by the state’s judicial nominating commissions, it would undermine checks-and-balances between the two branches.

In March, Pleus asked the Supreme Court to order Crist to name his replacement. Pleus, who retired last fall but has had to fill in since then to hear cases, said the delay was causing a backup of cases at the appellate court. The high court heard the case Wednesday.

The Florida Constitution says the governor “shall” fill court vacancies within 60 days of receiving up to six nominees from the nominating panels that screen applicants. That way, the governor theoretically has less power to appoint political allies or cronies to the bench.

The Judicial Nominating Commission – a group of lawyers, most appointed by Crist – reviewed 26 candidates, including at least three black lawyers, and submitted four men and two women. After Crist asked the panel to re-consider its list to include minorities -- specifically citing Orange County's chief Circuit Judge Belvin Perry -- the panel refused, saying it didn’t have the power to forward more names than the original six. Now, the 60-day window to act has passed.

Crist’s top lawyer, Jason Gonzalez, said the governor had refused to fill the vacancy because “questions had been raised” about racial bias in the selection, and the governor hoped to “clear the air” by getting a new slate of names “given the circumstances.”

“Are we to believe the governor should sit idly by when there’s serious question like this that has been raised?” Gonzalez said.

But several justices were troubled by the lack of facts behind the claim.

“That is part of the problem. What are the circumstances you’re referring to? Because none have come before us,” said Justice James E.C. Perry.

Justice Barbara Pariente echoed that frustration, and added that allowing the governor to run out the clock on the nominating process and get a new slate of names “completely eviscerates” the constitutional power of the JNCs.

“You have not articulated … the basis for the ‘serious concerns,’” Pariente said. “Wanting racial diversity is a wonderful goal, but there actually being racial discrimination in the process would be a separate thing.”

Both Pleus and his lawyer, former Florida State University President Talbot "Sandy" D’Alemberte, said there wasn’t any proof of racial bias, and judges questioned why Crist hadn’t taken any steps to investigate if his office had evidence of corruption.

“We have no facts alleged. You’re talking about all these things by innuendo,” said Justice Fred Lewis. “There are no facts before us with regard to improprieties or illegalities. There’s nothing like that.”

After the hour-long hearing, Gonzalez refused to provide more specifics about the “concerns” that had arisen and wouldn’t answer a question from a reporter about who raised them.

“What has happened here is there’s been a question that has been raised that hasn’t been answered to his satisfaction. So he doesn’t want to participate in a process until a cloud has been removed,” Gonzalez said.

Pleus said afterward he knew nothing of the "concerns."

“I don’t know what concerns he’s talking about. There have been no allegations whatsoever of impropriety or corruption or influence or anything else,” Pleus said.

“The members of that nominating commission are fair-minded people. They came up with a superb list that nobody can question.”

He added, “Diversity is certainly a noble goal. But you don’t always achieve it in this process.”

"The Long Thing"

2009-03-05T07:50:00.002-05:00

D.T. Max has written a very interesting story about David Foster Wallace and his last (unfinished) novel, which Wallace called "The Long Thing." Wallace worked on this novel off and on the last eleven plus years of his life. Wallace sought to express how man finds meaning in dark times, or something like that. Max includes quote from the work, quotes that illuminate Wallace's depression but also illuminate man's search for meaning. It is that latter topic that the best works of art address. An interesting quote from The Long Thing:

“Maybe dullness is associated with psychic pain, because something that’s dull or opaque fails to provide enough stimulation to distract people from some other, deeper type of pain that is always there, if only in an ambient low-level way, and which most of us spend nearly all our time and energy trying to distract ourselves from.”

Anyway, I recommend the article, found here: http://www.newyorker.com/reporting/2009/03/09/090309fa_fact_max?currentPage=all

Fifth DCA: All quiet on the Governor front

2009-03-02T21:49:00.002-05:00

It's been more than two weeks since Chief Judge Palmer of the Fifth DCA posted his letter to the Governor regarding the judicial opening on the Fifth that C.J. Palmer believes should be filled. Read more here:

http://treasurecoastappellatelaw.blogspot.com/2009/02/interesting-dispute.html

Crist's response to C.J. Palmer will be interesting no matter what the response is, in that it is not everyday that a state appellate judge writes a letter via website to the Governor of the Sunshine State.

Strangely enough, it would appear that no only will Crist's response have to be interesting. His doing nothing is also interesting. The silence from the Governor's Mansion is deafening. The pregnant pause, as it were.

Can't wait to see what happens next.

However

2009-02-28T21:33:00.001-05:00

Mrs. Margaret Meys taught me a great deal about good writing. She taught many English classes in high school, and I took both Honors English (Junior year) and Modern American Literature (or something like that) my senior year with her. One day, she used my bad writing to teach the class a lesson about the word 'however.'

I fancied myself a pretty good writer, and I like the word however. I would start sentences showing contrast with the word quite often. Mrs. Meys did not like this, and I thought she was wrong. I challenged her on it. And, like any good Irish Catholic teacher would, she absolutely pummeled me with her logic and ability with words - in front of the whole class.

The word however should not start a sentence; rather, move it between commas, following a short subject.

Example:

NO: However, John thought differently.
YES: John, however, thought differently.

I was quite pleased that Mr. Garner reminded me of this lesson last week, and considers the lesson so important that he emphasizes it on the inside cover of his writing manual.

Thank you, Mrs. Meys.

Eliminate Lawyerisms

2009-02-26T21:16:00.000-05:00

Another lesson from Garner: If you're thinking about using a phrase or jargon that you would not use in everyday conversation with friends or family, then don't. The phrase is a 'lawyerism' that you should eliminate. Garner quotes Judge Posner on this topic: "it is the second rate intellect that cultivates a pretentious vocabulary and potentous style." Richard A. Posner, How I Write, 4 Scribes J. Legal Writing 45, 49 (1993).

Write simply and directly. Here are some examples:

NOT THIS ----------------------------------> THIS

adequate number of --------------------------------> enough

at the present time -------------------------------> currently

during such time as -------------------------------> while

for the reason that -------------------------------> because

in the event that ---------------------------------> if

prior to ------------------------------------------> before

at this point in time -----------------------------> now

Anyway, you get the idea. This is also part and parcel of being ruthless with your editor's pen. Every lawyerism on the left can be cut down to less words as evidenced by the non-lawyerism equivalent on the right.

Now, get rid of the lawyerisms and become a better lawyer.

David Foster Wallace

2009-02-24T08:57:00.003-05:00

I had heard of David Foster Wallace before sitting through Garner's class last week, however, nobody had ever really piqued my interest about him. That is, until Garner endorsed Wallace and his work. I have since read several of his articles and I hope to pick up his novel Infinite Jest soon. From his wikipedia page:
___________
David Foster Wallace (February 21, 1962 – September 12, 2008) was an American author of novels, essays and short-stories, and a professor at Pomona College in Claremont, California. He was known for his 1996 novel Infinite Jest,[1][2] which Time included in its All-Time 100 Greatest Novels list (covering the period 1923–2006).[3]

Los Angeles Times book editor David Ulin called Wallace "one of the most influential and innovative writers of the last 20 years."[1]
___________

If you're interested in reading some of his works, I would recommend:

Consider the Lobster: http://www.lobsterlib.com/feat/davidwallace/page/lobsterarticle.pdf

and/or

Tense Present: Democracy, English, and the Wars over Usage
http://instruct.westvalley.edu/lafave/DFW_present_tense.html

I hope you found peace, Mr. Wallace.

Garner: uncover buried verbs

2009-02-22T08:17:00.000-05:00

Garner provides many rules and suggestions for improving your writing. A simple suggestion requires you to uncover 'buried verbs.' What are buried verbs? Garner explains, "it's really not a verb at all. It's a noun created by a verb -- the verb has been buried in the longer noun." Examples include the nouns (verbs to the right)

administration --------------------> administer
arbitration -----------------------> arbitrate
compulsion ------------------------> compel
conformity ------------------------> conform
enforcement -----------------------> enforce
reduction -------------------------> reduce

Each of these can be converted to verbs; in doing so, you will improve the writing because prepositions will usually be eliminated, be-verbs will be replaced by action verbs, and you will make clearer who is doing what. Of course, you will occasionally need to truly use the noun and not the buried verb. But you will be surprised how often you can convert the noun to the verb, and improve your writing.

Consider Bryan Garner

2009-02-21T13:50:00.000-05:00

According to Wikipedia, Bryan Garner "is a U.S. lawyer, a lexicographer, a teacher who has written several books about English usage and style, and the founder of LawProse, Inc. He is the author of Garner's Modern American Usage and editor in chief of all current editions of Black's Law Dictionary. He is also an adjunct professor at Southern Methodist University Law School."

According to me, he teaches a mean Legal Writing & Editing course. Yesterday I listened and worked through one of his many courses. I consider myself lucky to have had the opportunity to learn from him firsthand, and I hope this is the first of many classes of his I attend. There is so much to learn from his materials, thus I thought I would spend a week going over different ideas and lessons from the coursebook I received as part of taking the class. These will be in no particular order, just different ideas that strike my fancy and seem worthy of mention. (And in case you didn't get the idea already, I strongly recommend taking a course of his if you have the opportunity.)

On the inside cover of his coursebook, Mr. Garner provides "Five Essential Skills for the Adept Legal Writer" and then "Five More Tips for Improving Your Writing." One of those tips recommends "us[ing] real names, not procedural labels, for parties. For example, refer to 'Bleister,' not 'Third-Party Defendant.' And do this for all parties, even your opponents. Exceptions: (a) when an opponent is extremely sympathetic; (b) when multiple parties are aligned in such a way that a single name is inaccurate."

I like this tip for several reasons, not the least of which is that I have not previously followed it consistently.

One reason I particularly like it, however, is it addresses a very small decision that many of us do not think much about -- how to refer to the parties in our briefs. Writing a brief or motion, etc., requires making many decisions that often do not seem worthy of more than a second's thought. Or, it may be said that it requires making many decisions that we do not think we have the time to give more than a second's thought.

That is a mistake. These little decisions add up to a well-done brief, or a not-so-well-done brief (or whatever it is we are working on). In discussing Garner, the late writer David Foster Wallace referred to the expression from the well-known commercial: 'people judge you by the words you use.' It is easy to forget -- or choose to forget -- that simple fact of life. Decisions like how to refer to a party are the kinds of decisions that impact our reader, and the judge, or opposing counsel, and any of these readers will judge us unfavorably if we do not make the right decisions.

If this tip does not adequately lead you to understand why I appreciate Garner so much, give me a week of postings to make the case. And if I still have failed at that point, then check him out for yourself, because that will be my failure, not his.

(The title of this post is an homage to Wallace's "Consider the Lobster" article. I will write more about Wallace later.)

Interesting Dispute

2009-02-19T06:43:00.002-05:00

Chief Judge William Palmer has written a letter to Govenor Crist asking what Crist intends to do about the pending judicial opening at the Fifth District Court of Appeal. The seat is overdue to be filled, however, Governor Crist has rejected the slate of nominees forwarded to him by the Judicial Nominating Commission. Palmer posted his letter to the Fifth DCA website, a move some are calling unusual. What do you think? Here is an article about the dispute and then a link to the letter itself...

Appellate judge sends Crist stern letter on appointments

By Suevon Lee
Staff Writer

Published: Tuesday, February 17, 2009 at 2:46 p.m.
Last Modified: Tuesday, February 17, 2009 at 7:08 p.m.
The chief judge of the Fifth District Court of Appeal alerted Gov. Charlie Crist in a sternly-worded letter Friday that the court is awaiting his next move when it comes to making a judicial appointment for a vacant judge’s seat, left open now for more than a month.

The letter, posted on the Fifth District Court of Appeal Web site, states the court’s frustration in carrying out its duties as the result of the vacancy, created following the retirement of Judge Robert Pleus, Jr. in early January. It also requests a response from the governor this week.

“The failure to timely make an appointment from the nominations certified to you is adversely impacting the court, affecting the assignment of cases, the scheduling of oral argument, the timely disposition of cases, and the utilization of staff personnel,” wrote Chief Judge William D. Palmer.

The Governor’s Office on Tuesday said Crist “certainly understands the workload issue” and was weighing his next available options regarding the appointment.

“We’re evaluating what the next step is going to be. The governor continues to believe that having a diverse list of candidates that reflect the population and citizenry of Florida is still paramount,” said Crist’s spokesperson, Sterling Ivey.

The delay in naming a new judge stems from a dispute between the governor and the Fifth Appellate District Judicial Nominating Commission, whose list of six recommended names for the judge’s seat was rejected in November on the basis that it did not reflect any racial diversity.

When Crist requested the commission go back and resubmit a new list of names from the pool of 26 applicants, the commission sent the same list back - twice. Included on the list are Circuit Judge Brian Lambert and Ocala attorney Angela C. Flowers.

The 60-day time period given to the governor to make his appointment has expired.

The Daytona Beach-based court, which serves 13 counties, including Marion, is in the meantime operating with nine judges, as opposed to the usual 10.
-------------------
And here's a link to the letter itself:
http://www.5dca.org/Judges/Palmer/Gov_Crist_%20letter_Overdue_Appointment.pdf

A Bronx Tale

2009-02-16T18:21:00.003-05:00

When I began this blawg I intended to wander off the reservation occasionally as to interesting things to post about besides appellate law. I finally have a topic worthy of a first wandering-off-the-reservation post.

Yesterday I took my wife of nearly fifteen years to see Chazz Palminteri's one-man-show, A Bronx Tale, in Fort Lauderdale. Although the Fort Lauderdale run of the show is over, Chazz is taking the show all over the country and I could not more highly recommend it. The upcoming dates include Red Bank NJ, Stamford CT, Washington DC, Chicago, Milwaukee, and Boston (among others). Chazz tells the story of his youth in the Bronx during the 1960s. I had seen a few minutes of the movie (starring Robert Deniro) but did not know the full story going in other than the bare bones of an outline. My appreciation for 'mafia' stories is one of the few types of entertainment that my wife has never similarly enjoyed, mainly because she does not like watching violence in her entertainment (can't say that I blame her).

What is rich about the typical mafia story, of course, is that there is much more about the human condition than the violence in the stories that are done well. Therefore, when I had the opportunity to bring mi esposa to a show that would obviously discuss some violence, but not be able to depict it beyond words, I jumped at it. And the payoff was worth it.

As an Irishman, I have a few great storytellers in my family, and a few who have since passed on. Obviously he's not Irish, but Chazz is one of the great storytellers I have ever had the pleasure to hear. His story is moving, unpredictable, and insightful about the choices we make in life. I will not soon forget the Mario Test, the door lock test, JoJo the Whale, Frankie Coffeecake, and of course Sonny and "C."

If you have a chance to see Chazz Palminteri's A Bronx Tale, take it. It is worth every penny.

Reading death penalty appeals can wear a person down

2009-02-13T15:05:00.002-05:00

This week’s decision from the Supreme Court reminds us of man’s inhumanity to man. In Simpson v. Florida, we learn that the appellant killed a man and pregnant woman with an axe as they slept. Suffice it to say, if a society has the death penalty, then this man deserves it. The opinion is here:

http://www.floridasupremecourt.org/decisions/2009/sc07-798.pdf

Death Penalty Volunteers

2009-02-06T09:20:00.002-05:00

The concept of volunteering for the death penalty -- the "death penalty volunteer" -- has been subject to a great deal of discussion. See, for example, this article by Howard Bashman: http://www.law.com/jsp/article.jsp?id=1158311126065.

This week the Florida Supreme Court released one opinion, dealing with a death penalty volunteer who apparently has gotten cold feet. The opinion can be read at this link: http://www.floridasupremecourt.org/decisions/2009/sc07-1652.pdf. The Court held that an accused's volunteering for the death penalty does not mandate a competency hearing.

The bottom line: if you take part in a brutal murder, and decide you prefer the death penalty for your crime, make sure you think that decision through.

Suspended from Bar? Then you can't be a Judge

2009-02-05T09:45:00.000-05:00

I have previously written on the Palm Beach case of the suspended attorney who wanted to be a judge here: http://treasurecoastappellatelaw.blogspot.com/2009/01/reminder-behave-in-court.html and here: http://treasurecoastappellatelaw.blogspot.com/2009/01/seriously-dont-be-rude.html.

Not surprisingly, the Florida Supreme Court has concluded that an attorney who is currently suspended from the practice of law, yet has won an election to the Bench, cannot actually take the judicial seat. See

http://www.floridasupremecourt.org/decisions/2009/sc09-3.pdf

The Court basically called the decision 'common sense.'

Nice to see common sense win one once in a while.

Civil Practitioners Beware: In Recent Decision, Florida Supreme Court Disagrees with Professor Ehrhardt

2009-02-01T18:18:00.001-05:00

In late January, the Florida Supreme Court handed down Saleeby v. Rocky Elson Construction, Inc., 2009 WL 217974 (Fla. Jan. 30, 2009), a case with an arguably surprising result. If you are a civil trial litigator, then you should be aware of its implications for your practice.

The issue facing the Court: whether evidence of settlement may be admitted to impeach a former defendant’s testimony at trial.

The facts of the case are straightforward. Roof trusses collapsed on Plaintiff as Plaintiff worked on a construction site. In turn, Plaintiff sued (among others) both the installer of the trusses (“Elson”) and A-1 Roof Trusses, Ltd. (“A-1"), their manufacturer. After settling with A-1, Plaintiff sought at trial to have A-1's president opine - over Elson’s objection – that the collapse of the trusses resulted from faulty installation. The trial court overruled the objection and allowed the testimony. Nevertheless, the court also allowed Elson to impeach the president by having the president admit that A-1 had previously been a defendant in the case and had settled with Plaintiff prior to trial.

Plaintiff lost at trial and appealed, contending that admitting evidence of the settlement violated Section 768.041, Florida Statutes, and Rule 408 of the Florida Evidence Code, and was reversible error. The Fourth District Court of Appeal rejected Plaintiff’s argument (and other arguments) and affirmed the result, concluding that settlement evidence may not be allowed to prove liability, but may be admitted to prove witness bias or prejudice. The Fourth DCA reasoned that A-1 had a “financial stake in the matter which could have impacted its president’s expert opinion.” Professor Charles Ehrhardt previously articulated support for the position adopted by the Fourth DCA in his well-known treatise, Florida Evidence.

A majority of the Florida Supreme Court justices rejected the lower court’s conclusion. The majority concluded that Section 768.041's prohibition on evidence of release, covenant not to sue, or dismissal was absolute. The majority also relied on Rule 408, which makes evidence of an offer to compromise a claim inadmissible to prove liability or absence of liability for the claim. The majority cited to prior case law recognizing that it is a practical impossibility for a jury to learn of a settlement and not conclude that ‘where there was payment there must have been liability.’ For these reasons, the majority held that evidence of settlement was never admissible against the settling party, even where the settling party then testifies and may potentially suffer from bias in his testimony because of his prior status as a defendant.

Two of the newest justices on the Supreme Court, Justice Canady and Justice Polston, dissented by way of separate opinions. Justice Canady concluded that the jury was correctly apprised that A-1 was a former defendant in the case. The danger of prejudice to the Plaintiff was outweighed by the probative value of that fact – A-1's president had every reason to point the finger during his deposition at Elson, because at the time A-1 was a co-defendant. Then, at trial, A-1's president could hardly contradict his earlier testimony, regardless of the settlement that had taken place in the interim. On the other hand, Justice Canady did not believe that the settlement itself was admissible, because the settlement standing alone would not bias A-1's president against Elson. In his dissent, Justice Canady makes a compelling case for the logic of his nuanced position.

Justice Polston explained that he believed the majority over-read the implications of Section 768.041 and Rule 408; although those provisions disallow settlement evidence to prove liability, they do not speak to settlement evidence offered to prove the bias or prejudice of a witness. Justice Polston quoted Professor Ehrhardt at length, and threw his hat in with the good professor.

The bottom-line for the practitioner – a co-defendant who settles with a plaintiff prior to trial may no longer be impeached at trial by a second co-defendant with evidence of the settling co-defendant’s status as a former defendant, or evidence of the settlement itself. Violation of this rule is reversible error.

Ends Don't Justify Means

2009-01-31T23:27:00.000-05:00

County Judge Cliff Barnes (nod to oldtime fans of "Dallas") of the Nineteenth Circuit recently learned that he would receive a public reprimand from the Florida Supreme Court: http://www.floridasupremecourt.org/decisions/2009/sc06-2119.pdf

Judge Barnes -- since before taking the bench -- had long been critical of jail overcrowding in St. Lucie County, Florida. Paraphrasing his position, he believed that the presiding judge at First Appearance should take more ownership than many of the judges were taking when it came to setting bonds for certain offenders. When he perceived his internal complaints to have fallen on deaf ears within the Nineteenth Circuit, he filed a Petition for Writ of Mandamus in the Fourth District Court of Appeal to have his views on the matter upheld.

While I suspect his views on the matter were in some respect shared by members of the state Supreme Court, the Florida Supreme Court unanimously agreed that a public reprimand was in order for Judge Barnes. There are ways to articulate your concern for the liberty interests, and constitutional rights of, criminal defendants. Attacking your fellow judges by way of appellate pleading is not one of them. That is a principle that by analogy can be applied to attorneys, as well.

Attacking ones contemporaries will seldom yield good results, even if one has the best of intentions.

A Law Clerk's Job

2009-01-26T21:25:00.004-05:00

I'm sure a job description for an appellate court law clerk may vary depending on the wants and needs of the hiring judge. Nevertheless, at the very least a law clerk must proofread well. Many learned individuals will parse the language of any opinion or order arising from chambers very closely. The law clerk must take pains to ensure that, at the very least, typos and citation errors do not allow for substantive criticism that does not even reach the merits of the argument set out by the court.

That being said, perhaps Judge Barkett of the Eleventh Circuit Court of Appeals should be looking for new or better help tomorrow. In her dissent from the Eleventh Circuit's denial of rehearing en banc in Frazier v. Alexandre, there are a number of obvious typos or errors which jump out at the reader and distract from her argument. The order may be found at this link: http://www.ca11.uscourts.gov/opinions/ops/200614462ord.pdf.

The basics of this case are simple. Florida has a statute on the books which requires public school children to recite the Pledge of Allegiance unless the student possesses a permission slip from a parent asserting that the child will not recite the Pledge pursuant to an exercise of First Amendment rights.

Unsurprisingly, Judge Barkett believes the statute is unconstitutional. Although her argument is chock full of children's rights cases, and argument, her typographical errors cause the reader -- or at least this reader -- to question who is proofing her work, rather than whether her argument is persuasive. Among other errors that jump off the page, the seminal Fourteenth Amendment parental rights case, Meyer v. Nebraska, 262 U.S. 390 (1923)is cited incorrectly. The law clerk missed an error in the citation, and allowed it to be published as Meyers v. Nebraska (emphasis added to incorrect 's'), rather than Meyer v. Nebraska. Although this error will only be caught by someone familiar with this area of the law, that is what makes the error so distracting. Most lawyers who decide to read an order denying rehearing en banc in this type of case are going to be familiar with Meyer.

That is not the only error -- another obvious error is the failure to end her dissent with a final punctuation mark. The dissent reads: "I believe this opinion is demonstrably wrong and merits en banc consideration" -- and there is no period at the end of the sentence. This error, like the other mentioned, is incredibly distracting.

Frankly, I'm surprised such obvious errors could get through the Eleventh Circuit editing process, let alone the specific law clerk's editing process.

Seven Applicants for Florida Supreme Court Position

2009-01-20T22:53:00.003-05:00

Today the deadline to apply for Justice Wells' seat on the Florida Supreme Court arrived. Justice Wells fills the Fifth DCA/central-Florida seat, thus the applicants are all from the central Florida area.

Four of the seven applicants are circuit judges: Hubert Grimes of Deland, James Perry of Sanford, Debra Steinberg Nelson of Sanford and Renee Anne Roche of Orlando. Judge Grimes initially won election to the county bench, and then was elevated by Governor Bush in 1999 to the circuit bench. Another Governor Bush appointee, Judge Perry possesses a very interesting biography that most Americans would find inspiring: http://www.flcourts18.org/jb_s_perry.php . Judge Nelson, also appointed by Governor Bush, has won numerous awards for her legal work on behalf of children. Finally, Judge Roche ascended to the circuit bench after appointment by Governor Bush, following several years in commercial litigation.

One appellate judge applied: Judge Alan Lawson of the Fifth DCA. A former partner with Steel, Hector & Davis, he was initially appointed to the circuit bench by former Governor Jeb Bush, and then elevated in 2006.

Orlando lawyers Tracy Marshall and Daniel Gerber round out the applicants. Marshall is a partner at Gray Robinson, and Gerber is a partner at Rumberger Kirk and Caldwell; both of these Firms are well-known defense firms. Gerber's website features his recent win on behalf of the Florida Republican Part, pointing to this article: http://www.rpof.org/article.php?id=606, and a quick Google of Tracy Marshall indicates recent financial backing for Mayor Rudy Giuliani in his quest for the presidency.

All of the candidates mandate serious consideration. It will be interesting to see which candidate Governor Crist considers worthy of filling the big shoes of Justice Wells.

Seriously: Don't be rude!

2009-01-17T13:55:00.000-05:00

Earlier this month I warned litigators not to be rude, and mentioned a case arising in Palm Beach:

http://treasurecoastappellatelaw.blogspot.com/2009/01/reminder-behave-in-court.html

In that case, a criminal defense attorney was suspended for 91 days for being unbelievably rude to both the judge and the potential jurors. Believe it or not, the attorney then ran against the judge and, after a very close election, won the race. Unfortunately for the atty, the Supreme Court suspended him for 91 days as a result of the earlier imbroglio. Now, the Court will decide if Abramson can take the bench at all. Once again, the entreaty to 'behave in court' is buttressed. Here's the Florida Sun-Sentinel editorial about the case:

State Supreme Court getting last word on judge-elect case is good news
Sun Sentinel Editorial Board
January 16, 2009
Five months, three recounts and endless legal memos after a rare razor-thin judicial election, there's no questioning that the people of Palm Beach County have spoken and threw a largely unpopular judge off the circuit bench. But that doesn't mean that the people spoke well, or in the county's best interests.

In choosing the highly combative lawyer William Abramson over the often-explosive Circuit Judge Richard Wennet, voters may well have traded one bombastic jurist for an even more problematic one.

Abramson would come to the bench having been reprimanded three times by the Florida Supreme Court for disrespecting judges and with a reputation as a firebrand who doesn't know the bounds of courtly demeanor.

The good news is the judge-elect's judicial career is not set in stone. Deciding the issue will have nothing to do with whether Abramson should take the bench, but whether he is legally able to.

His latest disciplinary thicket, resulting from a complaint by Wennet after some boorish behavior by Abramson in front of prospective jurors in 2005, inspired the Florida Supreme Court to suspend Abramson from the Florida Bar for 91 days. That means that had he been allowed to take the bench on Jan. 6 as scheduled, he would have done so with a suspended law license, a highly unusual and troubling scenario.

Thank Chief Judge Kathleen Kroll, Gov. Charlie Crist and the state's high court for intervening. Kroll asked Crist to seek a state Supreme Court ruling on Abramson's eligibility for the judgeship. Oral arguments are scheduled for Jan. 27.

The verdict is still out on whether Abramson's antics will keep him from joining the ranks of those to whom he has long shown contempt. But there's comfort in knowing the Supreme Court will decide it.

==============================

I am looking forward to the Supreme Court's decision.

Florida Supreme Court update for Jan 16, 2009

2009-01-16T12:00:00.002-05:00

This week's release of opinions consisted of corrected opinions and cases remanded for reconsideration in light of a recent decision, Martinez v. State, 981 So.2d 449 (Fla. 2008). In Martinez, the Court explained that when self-defense is part of the defense's theory of the case, the forcible felony instruction may only be given where their are two forcible felonies in the case. Why? This is why:

===========
to instruct the jury on the forcible-felony exception in this circumstance amounted to informing the jury that although it might conclude that Martinez acted in self-defense when he committed an aggravated battery or attempted murder against Rijo, the use of deadly force was not justifiable if the jury found that Martinez committed attempted murder or aggravated battery. This circular logic would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense.
===========

Id. at 453. In this case, there was only one forcible felony -- the agg battery and/or attempted murder on the victim. If the jury was instructed that you can't be acting in self-defense if you committed a forcible felony, then in this circumstance you could never be acting in self defense. Since self-defense is a proper defense, that can't be true. For a good example of when the forcible felony rule would preclude self-defense as an affirmative defense,the Court offers this:

==========================
[A] defendant enters a convenience store and points a knife at the clerk, asking him to empty the register. As the clerk is doing so, a customer approaches the defendant from behind and hits him in the head with a bottle. The defendant turns and stabs the customer.

At his subsequent trial, assuming the jury believes this version of events, the defen-dant could not successfully claim self-defense for his aggravated battery of the customer. While ordinarily an individual who has been hit in the head with a bottle would be justified in using force to repel this attack, the Legislature has determined that a person who is committing a crime (in this example, the robbery) is not enti-tled to use deadly force.

Thus, the robbery is a separate and independent forcible felony, and the forcible-felony instruction is applicable.
============================

Id. at 454.

Bottom line: no forcible felony instruction in self-defense cases most of the time.
Second bottom line: this is not always fundamental error, although Judge Lewis in dissent explains why it very well should always be fundamenal error.

This fundamental error disagreement shows why a good appellate lawyer is good to have on hand during the trial. The defense attorney failed to object to this instruction. If the attorney had, then the case would be reversed and remanded.

Interesting 11th Circuit Opinion Today

2009-01-13T21:35:00.005-05:00

The Associated Press just ran a story about a federal civil rights case moving one step closer to a jury, after a favorable ruling from the Eleventh Circuit Court of Appeals in Atlanta. The story reads in part:

Florida false arrest case may go to jury
Associated Press - January 13, 2009 7:54 PM ET

ATLANTA (AP) - A woman arrested at a Florida hospital emergency room after racing there in premature labor has cleared another legal hurdle in a false arrest claim.

A federal appeals court panel Tuesday upheld part of a lower court's ruling, which denied two Jacksonville deputies qualified immunity from Melanie Williams's lawsuit.
---------------------

This blog's author represented the Plaintiff in this appeal. You may read the full opinion here: http://www.ca11.uscourts.gov/unpub/ops/200813218.pdf

Typos

2009-01-13T10:13:00.011-05:00

I hate typos.

I particularly hate when a typo makes it through the editing process into a finished and filed product.

I hate that with the white hot heat of a thousand suns.

A typo removes the reader from the argument and causes the reader to question the writer, instead of addressing the substance of the argument. In movies and literature, we talk of having to "suspend disbelief" when watching the movie, or reading the novel. By analogy, a well-written brief swallows up the reader, causing the reader to fully enter the world of the brief and forget things like grammar, word choice, and punctuation, because those basic requirements are so well done that the argument simply consumes the reader (and hopefully persuades the reader).

Since we're still relatively close to the New Year, how about making a resolution to give yourself enough time to edit sufficiently to eliminate typos?

You will sleep more peacefully at night. Take it from one who knows.

Reminder: Behave in Court

2009-01-12T12:40:00.001-05:00

The state Supreme Court released one opinion last week, involving a disciplinary proceeding against a former attorney just elected to the circuit bench in the Fifteent Circuit. The case is Florida Bar v. Abramson, found here:

"http://www.floridasupremecourt.org/decisions/2009/sc07-713.pdf"

In this case, a criminal defense attorney intended on the morning of trial to move for discharge, or if that failed, have his client plea. When the trial judge arrived in court, he elected to have the State and the defense attorney pick a jury before entertaining the defense attorney's motion or plea. For reasons that are unstated in the opinion, the attorney chose to attack the judge as he voir dire'd the jury.

First, the defense attorney repeatedly tried to interrupt the judge as the judge began the process of jury selection. Next, he called the trial judge "completely disrespectful, lacking in respect, lacking in professionalism[.]" These were all comments the defense attorney made to the potential jurors. Third, the defense attorney then attacked the judge at sidebar, blaming the judge for the defense attorney's conduct. Needless to say, a jury was not picked that day; the client discharged the defense attorney, and disciplinary proceedings against the defense attorney were set in motion by the trial judge.

I was not in court that day. I can't say what happened first hand. But I know it does no one any good -- least of all you or your client -- to be rude to the judge in front of a jury panel, or for that matter to ever be rude to the judge in court. If you think a judge is out of bounds, acting unethically, then take it up with the Judicial Qualifications Commission after you've lost the hearing, or whatever it is that led you to be upset with the judge. Here, the Supreme Court stated that the trial judge did nothing wrong. Regardless, even if the trial judge had done something wrong, attacking the judge in court for what you perceive as unprofessional behavior is never a good idea.

This may be one of those 'Everything I ever needed to know I learned in Kindergarten' moments. "Don't be rude" is the general rule we learned in Kindergarten, even in New Jersey (from whence I hail). Here, perhaps the sub-rule could be stated as, "and never be rude to the judge." Surprisingly, the defense attorney in this case must have missed that day in Kindergarten -- or law school.

It will be interesting to see how the 91-day suspension the Supreme Court thought was in order will affect the defense attorney's -- now judge's -- time on the bench.

More on Race Neutrality in Jury Selection

2009-01-11T16:43:00.001-05:00

I guess I hit on a topic last week that may provide a vein for regular posting.

The United States Second Circuit Court of Appeals concluded last week that a bare complaint of a potential juror being overweight as an allegedly race-neutral reason for peremptorily striking -- without judicial examination of the proffered reason for strike -- is insufficient to sustain the trial court's granting of the strike. That is, the trial judge must examine the proffered reason for genuineness, instead of just taking the reason at face value. The case is Dolphy v. Mantello, and I have provided a link to a pdf of the opinion at the end of this post. (h/t How Appealing)

In my comments last week on the Nowell case, I suggested that both the state and the defense could learn a lesson about how to successfully challenge, or sustain, a peremptory strike. Here, it would seem that the bench could learn a lesson. When the prosecutor asked for the strike because "I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant[,]" the trial court should have taken steps to ascertain the genuineness of that reason.

Possible ways of doing that could have been to: i) compare the weight of the other jurors to the juror in question, or ii) ask for some proof that there is evidence that overweight jurors tend to be more sympathetic than non-overweight jurors. Instead, the judge just asked if the prosecutor was saying race had nothing to do with it. Upon asserting that race had nothing to do with it, the judge said, "very well. Strike will stand." Asking the prosecutor if his reason is race-neutral does not satisfy the third prong of the Batson test, which requires the court to make a good faith inquiry into whether the alleged race-neutral reason is genuine.

This interesting opinion can be read here:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAzLTI3MzgtcHJfb3BuLnBkZg==/03-2738-pr_opn.pdf

Florida Supreme Court uses all CAPS for emphasis

2009-01-06T20:58:00.004-05:00

Last week, the Florida Supreme Court tackled the use of uncounseled DUIs and their use as enhancers to future DUIs. The case is quite interesting and certainly invites a discussion of the merits of the majority's position (as articulated by Justice Lewis) vs. Justice Wells and his position articulated in his dissent. The opinion is found at:

http://www.floridasupremecourt.org/decisions/2008/sc07-95.pdf

Although that discussion is invited, I'm refusing the invitation. Instead, I note that at Footnote 7 Justice Lewis used 'allcaps' for emphasis when explaining the majority's disagreement with the dissent. Justice Lewis writes: "In light of the dissent, it is important to thoroughly explain that a DUI defendant's prior misdemeanors are elements of the current, enhanced felony offense, which the State must PROVE beyond a reasonable doubt." Later in that same footnote, Justice Lewis goes on to put the words "VALID" and "INVALID" in all caps: "Further, uncounseled misdemeanors . . . are VALID convictions; however, they remain INVALID for purposes of depriving the defendant of his or her liberty."

The use of allcaps for emphasis is generally frowned-upon. Wayne Scheiss, the Director of the Legal Writing Clinic at the University of Texas Law School, explains that "Legal-writing experts agree that the use of ALL-CAPS hampers readability," and he cites Bryan Garner, editor of Black's Law Dictionary, and Irwin Alterman, the author of Plain and Accurate Style in Court Papers 17-18 (ALI-ABA 1987, for support. To find Professor Weiss's comments,look at the March 11, 2005 entry here:

http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005_03_01_archive.html .

Justice Lewis's use of all capitals in an opinion for emphasis strikes me as quite unusual. Since it's so widely known that all caps for emphasis is generally disapproved, I wonder what Justice Lewis was trying to convey?

I suspect there is more to those caps than meets the eye.

Race-Neutrality in Juror Challenges

2009-01-03T11:03:00.001-05:00

Earlier this week the state Supreme Court reversed the judgment and conviction for Willie H. Nowell, a young man who had been sentenced to death for a heinous murder:

http://www.floridasupremecourt.org/decisions/2008/sc06-276.pdf

In this per curiam opinion, the court addresses both race neutrality in peremptory strikes, and improper argument. The Court's discussion of race-neutral rationale in jury strikes is worth reviewing both by prosecutors and defense attorneys.

Here, the trial court applied the Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996) three-part test for evaluating a peremptory strike that has been challenged, but reached the wrong conclusion.

The assistant state attorney's proffered reasons for striking the Hispanic juror were three-fold: i) he just didn't like the potential juror; ii) the prospective juror was young, like the defendant, thus potentially too willing to put himself in the shoes of the defendant; and iii) his wife worked for a day care center (a fourth reason was proffered later, that the potential juror had said he didn't want to judge the defendant, but the Supremes rejected that reason as so obviously pretextual as hardly worth addressing).

The Supreme Court reversed this conviction largely because these three reasons were all pretextual. The Court's focus in reaching this decision (Step 3 of the analysis) was not the reasonableness of the proffered rationales for the strike, but the genuineness of those reasons.

The Court's focus on the first reason -- the ASA just didn't like the juror -- gives a bit of warning to prosecutors. If the court is looking out for race-discriminatory reasons as the real reason for striking a potential juror, you should be ready to articulate a tangible reason for the strike, a reason supported by specifics in the record. Stating that you "don't particularly like a juror" will not only be insufficient to sustain the strike, it should lead the trial court to question more closely the other reasons proffered. In this case, the Supreme Court explained that "we simply cannot ignore that the prosecutor's initial response when asked for a race neutral reason was essentially that he did not particularly like the juror." This legally unjustifiable rationale for the strike arguably tainted the other justifications, in the eyes of the Supreme Court.

The other reasons for the strike, however, were insufficient as well -- youth of the defendant was no different than youth of the victim, so there was no reason why the potential juror wouldn't put himself in the shoes of the victim. Hence, pretext. Moreover, there were white potential jurors who were of similar age who were not struck, and one made the jury. Likewise, a wife working in a day care center is hardly a reason to suppose a potential juror cannot follow the law correctly, particularly where the potential juror expresses no such lack of ability.

These second and third reasons for the strike remind the defense counsel to fully expose the justifications for strike to the light of reason. While on its face age may seem a valid race-neutral reason to strike a juror, it is not genuine if there are other persons of similar age on the jury, particularly other young persons of different skin color than the minority member sought to be struck. Likewise, without conceding that work in the child care world would render one unable to follow the law, the Court noted that the potential juror's sister-in-law worked in law enforcement, and the potential juror himself worked for a business that had been victimized by theft. Those are both factors that usually weigh in favor of the state wanting the potential juror. That they didn't exposes the state's third proffered justification -- that a spouse worked in child care -- as one that could not be taken seriously as a genuine reason for the strike.

Congratulations to (soon-to-be) Justice Labarga

2009-01-02T10:55:00.000-05:00

Earlier today, Governor Charlie Crist of Florida announced his appointment of Judge Jorge Labarga to the Florida Supreme Court. Justice Labarga has an interesting life story, having immigrated to the United States as a child with his family following Castro's revolution in Cuba. Many Floridians share a similar story of coming to America following the revolution, and in my experience many of those Cuban-Americans have gone on to great accomplishments. As an American, those stories make me proud; they give proof to the claim that our country is still a land of opportunity.

Less important today, but perhaps more important in two to three years, are the circumstances surrounding the appointment. At least some Republicans are apparently disappointed by this pick, if the National Review's "The Corner" is to be believed. Per that blog this morning just before the announcement:

****************
Florida Gov. Crist to Cave? [Ed Whelan]

From someone very knowledgeable about the Florida supreme court:

FYI, the buzz here in Florida is that Governor Charlie Crist is preparing to name his third Florida Supreme Court pick as soon as today. Crist's first two picks were solid conservatives - Rick Polston and Charles Canady - but did not shift the balance on the Court since each replaced conservative jurists. There is intense pressure on Crist from the media, left-wing activists and plaintiff's bar to preserve the liberal majority on the Court. The only conservative who made it out of the state's judicial nominating commission is Frank Jimenez, who has been subjected to a withering character assault, much like the assault on Miguel Estrada. While Crist hasn't announced any name yet, there's a lot of concern here that he will give in to the Left and appoint someone other than Jimenez. If so, it will be a real lost opportunity to restore some balance to one of the worst Courts in the nation.

The rumored appointee is Jorge LaBarga, whom my source describes as a “journeyman trial judge” who “has shown no evidence of having a well-formed conservative judicial philosophy.”

**************

As one can see, the impending announcement of Labarga's appointment was deemed worthy of comment on one of the leading general blogs for conservatives. I suspect that the blogger, and his audience, care less about Judge Labarga and the Florida Supreme Court than they do about Governor Crist's likely run for President in 2012. In the eyes of conservatives, it would appear that this pick may haunt Crist. Time will tell.

In any event: Congratulations Judge Labarga!

Chief Justice's Plea for More Money!

2009-01-01T09:55:00.000-05:00

Each year, the Chief Justice of the Supreme Court provides a year end report to Congress about the Judiciary, the third branch of our federal government. This year, as in past years, Chief Justice Roberts asks for a pay increase for the members of the federal judiciary. His plea can perhaps be summed up in one sentence from the report:

"Given the judiciary's small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the judiciary's modest petition: Simply provide cost-of-living increases that have been unfairly denied!"

Our federal judiciary is populated by lions of the law. I have worked for one, and have had the privilege of practicing in front of several. I sympathize with the Chief Justice's request, and agree that COLAs are the minimum pay raise the judges deserve.

Nevertheless, as a legal writer I am chagrined by the Chief Justice's use of the exclamation point. If you substitute a period where the exclamation point appears, the demand is no less serious. The Chief Justice's use of the exclamation point here was unnecessary and detracts from his point, as it draws attention to his unusual punctuation choice instead of the demand he is making. Rather than focus on the demand, as a reader I am ruminating on what exactly went through his head in making the decision to use the exclamation point.

For a news story on the report, go here:

http://www.law.com/jsp/article.jsp?id=1202427147575

Florida Supreme Court Thursdays

2009-01-01T08:57:00.000-05:00

If you grew up in the northeast like I did, then you may recall the commercial slogan: "Wednesdays are Sundaes at Carvel." This tagline conveyed that Carvel, an ice cream shop, discounted their ice cream sundaes on Wednesday. Those of you who know me will agree it's not surprising that such a slogan would have caught my interest and still be remembered fondly.

In a similar vein, Thursdays are opinion days at the Florida Supreme Court. On almost every Thursday of the year -- excluding August, when the Court is in recess -- the Florida Supreme Court releases its newest opinions to the public. I will strive to timely summarize the interesting opinions as they are released each week.

Of course, today being New Year's Day, the opinions for this week were released on Tuesday. Summary to come.

About the blawger

2009-01-01T08:14:00.000-05:00

I am a '96 graduate of the University of Florida College of Law. After serving as an assistant public defender for the Fifth Circuit, I law clerked for the Honorable Emerson R. Thompson, Jr., of the Fifth District Court of Appeal for Florida, followed by two-year federal clerkship with the Honorable Henry Lee Adams, Jr., of the Middle District of Florida, Jacksonville Division.

Currently, I practice trial and appellate law with Gary, Williams, Finney, Lewis, Watson, & Sperando, P.L., a boutique plaintiff's firm in Stuart, Florida. Stuart is considered a part of the Treasure Coast of Florida, hence the blogsite name. I chair of the Martin County Bar Association's Appellate Practice committee, and am a member of the steering committee for the local Catholic Lawyers' Guild.

For a fuller bio, please see my law firm profile:

http://garylaw.com/a_miller.htm

What is this Blog?

2008-12-22T05:42:00.000-05:00

In the spirit of law blogs (blawgs) like How Appealing and Abstract Appeal, this blawg will track the development of the law, and interesting legal news items to lawyers from an appellate perspective. I have read Howard Bashman's How Appealing since nearly its inception, and similarly have read Matt Conigliaro's Abstract Appeal that long, as well. I consider both their sites the main inspiration for this one, and will seek to bring attention and commentary to the important legal decisions being made each day. The blawg will emphasize Florida although not necessarily be constrained exclusively to Florida law.

At the same time, the blawg may also provide some commentary closer in spirit to Professor Ann Althouse's blawg, as well.