Archive for the ‘Lagniappe’ Category

Florida “Ghost Ship” Story May Be Told

Monday, April 12th, 2010

The Third District issued a terse opinion last Friday in Maria Gagliardo v. In Re The Matter of the Barnham Children.  The case arises from the underlying disappearance and presumed murder of the husband-and-wife captain/crew of the “Joe Cool” charter boat which went missing after leaving Miami for the Bahamas.  According to this September 2007 TIME magazine story, the owners were presumed murdered by the two men who chartered the boat.  Additional information on the missing ship is here, here, and here.  At least one suspect received multiple life sentences.

But our case was not a criminal one.  An aunt was appointed guardian for the children while another family member apparently informed the family (and court) that she was going to write a book about the nationally-publicized incident.  The aunt was able to convince a trial judge to enter an order restricting the other family members from publishing information about the children or the family.  The writer, armed now with the ACLU, appealed.  The Third DCA, in a short 1-2 page opinion, held that this was a well-publicized event and that the special circumstances necessary to put prior restraints on free speech under the First Amendment do not exist here.

What Are The Steps to Seal a Court File in Florida?

Sunday, June 28th, 2009

The Third District recently provided, in BDO Seidman LLP v. Banco Espirito Santo International et al., a condensed explanation of the nearly impossible standard to seal a court file.

The issue arises infrequently, and rarely successfully, so a brief refresher may be warranted.

Briefly, the standard arises from a 1988 Supreme Court of Florida case, Barron v. Florida Freedom Newspapers, Inc., which holds:

1.  Strong presumption of oppenness;

2.  Burden is on party seeking closure;

3.  Closure is only done when necessary for public policy reasons; trade secrets; government interests; “to obtain evidence to properly determine a legal issue”; to avoid substantial injury to third parties; or to avoid substantial injury to a party by disclosing information protected by privacy or common law rights.

4.  Trial court must confirm there is no reasonable alternative.

5.  Presumption of openness remains through appeals.

What Do Environmental Activists and Loan Guarantors Have in Common? Not Personal Jurisdiction in Florida

Thursday, May 14th, 2009

The First and Fourth Districts have handed down strong opinions this month on Florida personal jurisdiction, indicating that non-Floridians cannot be haled into court here if there sole minimum contacts involve (1) guaranteeing bank loans made here, (2) infrequent emails/phone calls into Florida, (3) schools having alumni groups in Florida, and (4) correspondence school/distance learning students in Florida.

In Ed Labry, Bill Benton and Kevin Adams v. Whitney National Bank, AB9G, LLC, Steven R. Bradley, Jon D. Laplante, and Brad Zeitlin, non-Florida guarantors of a defaulted Florida bank loan were not subject to personal jurisdiction since the guarantors lacked the sufficient minimum contacts with the state of Florida, despite it being a Florida contract.

In the companion cases of Diana Reiss, Ph.D. v. Ocean World, S.A. and The Trustees of Columbia University in New York City et al. v. Ocean World, S.A. Earth Island Institute, Emory University, et al., personal jurisdiction kept an environmental activist and a major university out of a Florida lawsuit over the sale of Japanese dolphins to a Dominican Republic amusement park.

In Reiss v. Ocean World, the appellant disputed personal jurisdiction because she was not a resident in Florida and did not do business in the State. The Plaintiffs tried to use emails and phone calls to people in Florida and involvement in Florida activist organizations as a basis for personal jurisdiction. The court held there was no tortious act which occurred within Florida; likewise, the communications into Florida were not tortious and therefore there was no jurisdiction.

In the second case, Columbia University v. Ocean World, the school objected to jurisdiction as well. The claim was that Columbia was subject to Florida jurisdiction because it owned property in Florida, had an alumni group in Florida, had “distance learning” students in Florida, and had filed lawsuits in Florida. Here too, the court held that the “minimum contacts” were not satisfied because the school’s Florida actions were not connected to the plaintiff’s cause of action.

For a refresher on the Florida Long Arm Statue (F.S. 48.193), in personam jurisdiction, and infamous cases like Venetian Salami, International Shoe, and Worldwide Volkswagen, feel free to take these three cases for a spin.

Jesus Christ We’re Worried About License Plates in Florida!

Sunday, May 10th, 2009

The Orlando Sentinel said it best:

The education budget may be cut. Taxes may be raised. Our state is in economic crisis. And what are our legislators talking about? License plates. And the comments from the Miami Herald

and St. Pete Ti

mes aren’t far behind.

But let’s tiptoe through this carefully: more carefully than the mainstream press, but less detailed — at this point — than true constitutional scholars.  First, note in all three news articles only ONE gives you the link to the actual bill text.  So let’s get that out of the way:  you can find Senate Bill 642 here.  Note how much goddamn time is spent on this bill.  There have been votes, committee meetings, versions, amendments, floor amendments, and three sets of staff analysis.  Yes, all for license plates.

According to the March 2009 analysis, the issue started, humbly enough, with the proposal to make an Autism license plate.  No Jesus in sight.  My how times have changed in a month.

In the current bill version, not only do we have a Christian license plate BUT we also have the money going to… Toomey Foundation for the Natural Sciences, Inc. Sounds benign enough, right?  Except it is religious based — including a bible quote on their scientific? home page.  Don’t think someone is playing fast and loose?  How about the bills prior version which gave the money to… Faith in Teaching.  Curiously, their website is down.  Some scant information about that group is here.

Constitutionally, there are two issues: can a State have the plate and, if so, can the State take the money and give it to a religious group… we’ll see.

Wrinkles v. Jury Duty: You Be the Judge

Friday, May 8th, 2009

According to the Chicago Sun Times, Mr. T is good enough to show up for jury duty.  Even a group of citizens in Tampa got a moment on their soapbox after serving on a jury.

On the other hand, the Chicago Tribune recently posted a dozen ways to AVOID jury duty.  

But the good folks at the found someone who was really not so interested.  Here’s his affidavit as to why, uh, he is a bit occupied at the moment.  Namely, he would “rather count the wrinkles on my dogs balls than sit on a jury.”

You want to count what??

To find out what happened, here’s the story, A New Wrinkle on Avoiding Jury Duty.  Damn, wish we thought of that title.  

For 500 or more other pithy comments on the story, flip over to our friends at

“The Complete Lawyer” on Four Trends To Change Paralegal Profession

Saturday, May 2nd, 2009

In preparing for an ethics presentation to the Paralegal Association of Florida this Saturday for their 2009 Spring Seminar, we came across the interesting article, Four Trends Will Change the Face of the Paralegal Profession, at The Complete Lawyer.

Since there may not be time to discuss the article at the seminar, we might as well open the forum to the Net.  To summarize, the four trends are social networking websites, offshore outsourcing, paralegal regulation, and e-discovery.

First stop, however, is our dissent on the issue of outsourcing legal/paralegal work.  This is pure opinion, since I do not use offshore paralegals.  But even in the face of clients reportedly asking law firms to send out work (which I can’t imagine), I just don’t see this being an industry changing trend.

The rest of the article is dead-on.  A paralegal who does not know Web 2.0 skills has a dim future.  Lawyers can get away with it, since, after all, we have paralegals to do our internetting.  But even the lawyers are feeling the tech pinch.  I recall, over 10 years ago, a lawyer questioning whether “in the future” it would be malpractice to not have Westlaw.  I reminded him, even at that time, that the compentency and diligence requirements mandated good research, no matter what the source.  Depending upon the situation, if it is reasonably accessible information, a court might find it to be malpractice not to know it is out there/get it.

Regulation of paralegals is probably here to stay — and hopefully will get more efficient.  Researching “paralegal ethics” on the Internet leads to multiple model rules and association “opinions” with many inconsistencies…  paralegals need more structure to know right/wrong.

e-Discovery is here to stay also and, for the next 5-10 years, will be a boon to lawyers and paralegals since the e-Discovery rules overdo quite a bit, thus generating a lot of work.  At some point, after everyone finishes going e-frantic, the e-Discovery term will be an annoying cliche and massive data-dumping discovery requests will be passe.  Until then, bill your time.

Sticklers Unite — April 16 a Grammar and Tax Holiday?

Thursday, April 16th, 2009

Yes, your taxes are due.  And you should use good grammar.  Today is the 50th Anniversary of the beloved?  notorious? Strunk and White, “Elements of Style.”  If you think of taxes and writing, it’s a big day for lawyers.

In my former firm, a great percentage of my time was spent “correcting papers” — otherwise known as proof-reading letters and motions written by associates who either never knew or quickly disgregarded how to write.  That was not a practice of wielding picky sentence formation rules, it was avoiding embarassment for the firm.  Fortunately, those days are over; that said, poor habits abound when you post on two blogs a week, so nobody is perfect.

The ABA brought this anniversary to the forefront and you can read their take in Choose Your Grammar Battle and Take a Side.  They put a comma in their title while I left it off.  Who is right?  But the mainstream media isn’t as superficial as one might seem.  The might USA Today likewise recognized the day in Elements of Style, Still Fashionable After 50 Years.

How Do You Sue Lloyds of London in Florida? Not This Way…

Tuesday, April 7th, 2009

A 2004 lawsuit sought to sue an insurance company or companies and therefore named, “Lloyd’s Underwriters at, London, a/k/a Underwriters, Lloyd’s of London.”  The defendant filed a Motion to Dismiss as well as an affidavit disclaiming that Lloyds was neither a corporation nor insurance company.  Two years later, the suit was amended to name “Certain Underwriters at Lloyd’s, London.”  That too was found insufficient.

“The defendant described in the amended complaint is not an entity capable of being sued any more than ‘a certain driver in Broward County’ would be a proper defendant…”

The Florida court made reference that a policy number might help.  It appears then, that “certain underwriters” with the policy number might be enough to get the case going; then discovery should yield the actual underwriters.

The Fourth District opinion is Certain Underwriters at Lloyd’s, London v. Gilbraltar Budget Plan, Inc., Puritan Budget Plan, Inc., Perry & Co., Equity Premium, MHD Premium Finance Company, Freedom Finance Company, First Grampian Finance Corporation, RDL Premium Finance, Inc. and Delta Finance Company, Inc.  The Panel was Gross, Farmer, and Maas (associate judge).

Obama Administration Broadens FOIA “Openness”

Thursday, April 2nd, 2009

According to a March 19, 2009 memo from the U.S. Attorney General, the federal government is going to be considerably more “open” in responding to Freedom of Information Act (FOIA) requests.  No longer are departments supposed to withhold documents simply because they can.  The new rule rescinds the 2001 Bush Administration stance.   Some commentators are still not thoroughly pleased, although grateful for the now-mandatory explanation for redactions.  The Miami Herald, meanwhile, claims it is a “win for transparency.”

Move from

Thursday, February 26th, 2009

Welcome to Florida Law Commentary, a website devoted to trends in Florida law, specifically focused on new decisions issued by Florida courts. 

This project began several years ago with Florida Arbitration, which had an intentionally narrow scope.  Ironically, the common mistake of bloggers is to take on too much of a topic; arbitration was great, and certainly enough for a blog, but the challenge of keeping up a blog was met and overcome.  In fact, we’ll continue to keep that blog going.

Over the years, even with plenty of material, the desire to discuss other developments outside of arbitration/mediation could not be ignored.  The temptation to address other topics grew simply too great. 

This (new) site provides an unrestricted platform which hopefully will not be too overwhelming. The primary goal of the site is to report and comment on critically important decisions as they come out — before it hits the paper copy of Florida Law Weekly — and before that hot new case makes the rounds in the courthouse.  The final intent is to report on trials, new concepts, legal news, and practice theories.  Maybe even rumor.  Who knows.  

The intended readers are likely Florida lawyers, if not specifically Palm Beach lawyers, and others interested in civil litigation developments in this state.  An emphasis on contracts, construction, health care, negligence, nursing home/ALF, probate, and wrongful death law should become apparent. 

This site is pure opinion, not always serious, and none of this is intended as legal advice.  It’s not an advertisement.  You know not to believe everything you read on the internet.  Also, there’s no sharing of blame: nothing here should be construed as the opinions of any law firm, client, business entity or anyone else other than the author.  In fact, whatever is written here may simply be a passing notion.

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