Archive for the ‘Law News’ Category

Florida Bar News correction

Wednesday, October 13th, 2010

The October 15, 2010 Florida Bar News incorrectly listed my name as a “lawyer on the move.”  This is an error.  The corrected version is already available online,  here.

What Do The Lawyer Rating Internet Sites Say About You?

Friday, September 24th, 2010

U.S. News and World Reports recently issued their ranking of law firms (interestingly not in a straight list form, like the school rankings, but broken into sections).  Other sites, ranging from Avvo to Craigslist to also include rankings.  Are these useful for clients?  What do they say about lawyers?  Take a look at this month’s law technology article from the Palm Beach Bar Association September 2010 Bulletin, “What Do Internet Rating Sites Say About You?”  Hit the link or look to the right under articles for “2010 Lawyer Rankings.”

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.

Does Your Company Need a Lawyer to Handle Social Media, Twitter and Facebook?

Friday, January 29th, 2010

At least one company, Clorox, is looking for a full time, in house lawyer to clean up their social media policies and presence.  Is that necessary?

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page.  But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional).  I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook.  Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client.  The client could develop the content and have the law firm handle the updating and monitoring.  With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective.  Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month.  A lot of PR firms could run up that tab in a week.  In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing.  Some basic good advice on cleaning up your Twitter service is here.  Email if you have comments, experiences or questions about lawyers providing social media services.  I’m interested to see who else out there is providing that service.

Mickey Mouse Sues Donald Duck in Southern District of Florida

Sunday, November 22nd, 2009

No sure who was Mickey Mousing around to write or find these pleadings, but somewhere on PACER exists a lawsuit where Mickey is suing Donald for trademark violation.  Last time we checked, though, Walt Disney World was in the Middle District.

Anyhow, it is probably not the silliest Disney suit we’ve seen.

Legal Pad had the scoop (don’t let the real Disney folks see your post image!) and ABA Journal Mobile picked it up as well.

Georgia Court Sanctions Obama “Birther Movement” Lawyer $20,000

Tuesday, October 20th, 2009

A federal court judge just north of Nassau County, Florida in Georgia entered an order sanctioning attorney-pundit Orly Taitz for, inter alia, pursuing a case without a client in a quest to get a copy of President Obama’s birth certificate.

If you are new to the issue, there are reportedly “dozens” of lawsuits around the country seeking proof the President has an American birth certificate.  This is the so-called birther-movement.

We’ll leave the decidedly political rhetoric to others and, instead, give you first-hand access to the 43-page October 13, 2009 opinion in Connie Rhodes v. Col. Thomas MacDonald, United States of America, et al.

Some great quotes are littered throughout the opinion, although one wonders whether 43-pages is necessary to deliver what appears to be an intended death blow to this case and this lawyer’s career.  Whether the 11th Circuit will see this case remains to be seen.

Reading from the source documents (here, a court order) often gives you insight which the news media can’t provide:

1.  ”Counsel here has an affidavit from someone who allegedly paid off a government official to rummage through the files at a Kenyan hospital to obtain what counsel contends is the President’s “authentic” birth certificate.”

2.  After referencing the hypothetical claim that President Obama may be… a martian, the court wrote, “The Court does not make this observation simply as a rhetorical device for emphasis; the Court has actually received correspondence assailing its previous order in which the sender, who, incidentally, challenged the undersigned to a “round of fisticuffs on the Courthouse Square,” asserted that the President is not human.”

3.  ”While the Court derives no pleasure from its imposition of sanctions upon counsel Orly Taitz, it likewise has no reservations about the necessity of doing so. A clearer case could not exist; a weaker message would not suffice.”

At the risk of turning this political, we turned to see how the news media handled the legal analysis.  In all fairness, coverage was matter of fact, with the Associated Press contributing the point that the judge was appointed by George Bush.  The various blogs were dutifully aligned with their political slants.  Fox News apparently did not see the value in reporting the story.

Miami-Dade Courthouse Prepares for Swine Flu/H1N1

Friday, September 11th, 2009

The Miami-Dade courthouse has issued a statement regarding swine flu / H1N1.  This is for personnel, not lawyers.  Other courthouses around the state are likely to follow.  Here’s the plan:

Flu Season Update #1 – Court Policy Statement

The new school year has begun and due to the large gathering of students, combined with the existence of the H1N1 virus and the usual onset of the regular seasonal flu, we felt it prudent to communicate the policy of the court regarding our response to the seasonal flu and H1N1 virus and the effects on Court Personnel[1] and operations.  The more you know about how to prepare yourself and your family and about the court’s policies, the easier the situation will be to handle for all of us.

1) We will maintain a cooperative and flexible relationship with court personnel that are ill or have to take care for ill children and/or other family members.

2) In the current situation, existing attendance and leave policies apply (Sick Leave, Annual leave, FMLA or Unpaid Leave, if necessary, must be used by court personnel.)  NOTE: Should the Chief Judge decide to activate our Pandemic Continuity of Operations Plan (COOP) and temporarily change the operating schedule and functionality of the court, this policy may change at that time.

3) We continue to promote that court personnel should stay home when ill.  According to the Center for Disease Control and Prevention (CDC), the best way to mitigate the spreading of the flu is to …stay home if you are sick with flu-like illness until at least 24 hours after they are free of fever (100 degrees Fahrenheit or 38 degrees Celsius) or signs of a fever (have chills, feel very warm, have a flushed appearance, or are sweating), except to get medical care or for other necessities.  This should be determined without the use of fever-reducing medicines (any medicine that contains ibuprofen or acetaminophen). .

4) Should a member of the court personnel come to work exhibiting flu like symptoms, that person should be sent home.  According to the CDC, H1N1 flu like symptoms are described below:

a. The symptoms of novel H1N1 flu virus in people are similar to the symptoms of seasonal flu and include fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills and fatigue. A significant number of people who have been infected with this virus also have reported diarrhea and vomiting. .

b. If unsure as to whether the member of the court personnel should be sent home for any reason, please contact the AOC Human Resources Division at (305)349-7351 for guidance.

c. If a member of a different justice agency exhibits flu like symptoms, call AOC Human Resources so that they can call the emergency contact from that agency.

5) The Building Managers in all the courthouses are assisting in keeping the facilities safe and clean.

a. They have the Spartan disinfectant on hand and use it nightly when cleaning.  They are wiping down the elevator call buttons, bathroom fixtures and door handles nightly; these are the most widely touched areas.

b. They have placed posters in all the public restrooms written in English/Spanish/French (they don’t have Creole) regarding how to cover your mouth when you cough, to use tissues and wash your hands.

c. If someone is known to be infected and/or suspected of being infected in your facility, you should notify the building manager’s office so that they can clean the affected area.

More information will be sent to you next week regarding preparations, staying healthy, etc.

Additionally, below are links to various expert resources of information regarding the influenza A (H1N1) infection, the status of the situation around the world, suggestions for protecting yourself and families, and answers to frequently asked questions.

a. World Health Organization (WHO):

b. Center for Disease Control and Prevention (CDC):

c. Florida Department of Health:

d. Miami-Dade County Department of Health:

e. Miami-Dade County Emergency Management & Homeland Security (EOC):

Can a Lawyer Get a Copy of a Transcript Without Paying Court Reporter? (The Debate Continues)

Monday, September 7th, 2009

There is often an unspoken understanding that lawyers who attend hearings which are transcribed need to pay the court reporter to get a copy.

Thus, if there are 10 parties to a lawsuit and everyone wants a copy of a 15-minute hearing transcript, court reporters often take the position that the party ordering the transcript pays an “ordering fee” and all nine other parties then pay lesser, but still pricey, fee for “copies.”  Pricing varies from court reporter to court reporter, but often a “copy” of a transcript is not at the Kinko’s-level copy charges of 5-10 cents per page.  It’s often over $1 per page, perhaps significantly so.

We touched upon this issue in an earlier post where we discussed posting deposition videos on YouTube (which also skirted the issue of sharing expert depositions).  A subtle theme in that “white paper” at issue in the prior post was that some court reporters lay a claim to transcripts.  Given that court reporters put in long hours in that boring deposition which was meaningful only to you and produce quality work, you can see the reasonable origin of their thinking.  But the law may not be on their side.

The Tenth Circuit Court of Appeal issued an unpublished opinion on this very same issue, specifically a battle over about $4,000 in court reporter fees.  As the court warns, that order is not precedent but simply persuasive for non-party court watchers.  The case is United Transportation Union Local 1745 et al. v. City of Albuquerque.

The case involved an overtime dispute between employees (union) and employer (city).  Of note, that claim is a statutory one which includes a right to attorney’s fees.  During litigation, hearings before a special master occurred and the City order the transcripts.  The plaintiff lawyer did not order a copy.  Instead, he sought to have the court compel the City to file the transcripts so he could pay the clerk of the court regular photocopy charges for the transcript rather than pay a higher fee charged by the court reporter.  That was denied.  He then obtained the transcripts by making a public records request (presumably, these transcripts were not time sensitive).  Clever.  Again, that way he would pay the City for their photocopy charges and avoid paying a higher charge to the reporter.

Bottom line: the court held that the court reporter could not demand a fee under the circumstances.

The court wrote, “We have found no authority to justify requiring plaintiffs… to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a ‘missed fee’ whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made — and was paid for making — for someone else.”

The court went on to note that a court reporter does not have a copyright since they are not the authors of the transcript.  That said, there was some precedent that a party cannot be compelled to produce transcripts in discovery in the same case.  Also not addressed is whether there might be a contract between the ordering party and the court reporter agreeing that there is no copying allowed… whether filing the transcript would alleviate that concern is unclear.

We’re of mixed minds on this issue, not so much in terms of the strict legal rights but in what is fair under the current market methods.  It seems an unnecessary windfall for a court reporter to charge a “reporter rate” for a transcripts as well as a heightened rate for copies (see the example above, where an original and nine copies are ordered — which could run hundreds of dollars).  That said, would it be “unfair” to have one ordering party and then they fire off nine copies for the other lawyers?  Or would this simply lead court reporters to increase the cost of the ordered copy?

As the 10th Circuit order is not precedent, it certainly will not end the issue.  Lawyers quietly pass these costs along to clients and typically do not want to make waves with friendly court reporters.  But, just as the billable hour is not always a reliable system for lawyer work, the “original/copy” pricing system does not seem a perfect fit for quality court reporter services.

Thanks to the ABA Journal (10th Circuit: Court Reporter Not Entitled to Fee for Copied Transcript) and the Exclusive Rights blog for the great scoop.

For related stories, take a peek at the Court Reporting blog.

Do You Need a “Bedbug” Clause to Buy Sell Home or Condo in Florida?

Sunday, August 30th, 2009

With real estate sales slowly coming back to life, the last thing buyers and sellers or their lawyers need is another clause or provision to create headaches.  No, it isn’t chinese drywall.  It’s bedbugs.  And considering that tropical Florida is essentially Darwin’s waiting room when it comes to critters and creatures, a wise buyer/seller may want to consider specific statements about… bedbugs.

The New York Times broke the story suggesting that, at least in New York City, bedbugs are “the new mold.”

Here in Florida, a professional but clear statement in the closing documents likely would go a long way to avoid future hassles.  Consider it a limitation of liability… with many little legs.

Plaintiff Lawyer “Channels” Decedent During Closing Argument, Juror Faints, Defendant Doctor Revives

Wednesday, August 26th, 2009

It must have been one of those only-in-a-courtroom moments.  After four days of a medical negligence trial in Montana, the plaintiff’s counsel closed the case by “channeling” the decedent, offering a fictitious first person narrative as to what the decedent experienced during death and while being autopsied.  A juror decided that the closing “was too much to bear” and apparently collapsed.  The defendant doctor — assisted by three nurses in the jury — revived the fallen juror.  In a later hearing, all remaining jurors swore they could set aside what they saw and focus on the events of the case.

The Supreme Court of Montana wasn’t so sure and found that a new trial was warranted.  Relying on similar weird courtroom incidents from other jurisdictions,  the court found, “Based upon the extraordinary events observed by the jury, we conclude that a mistrial should have been granted or, failing that, a new trial should have been granted after the verdict.”  Case is Amy Heidt as PR of Estate of Gerard Heidt v. Faranak Argani, M.D., and Deaconess Billings Clinic.

Interestingly, what was not addressed in the decision was whether the technique of “channeling” the decedent was improper inflammation and prejudice of the jury.  Driving a juror to be ill suggests something – whether it is improper or simply good speaking skills and a gruesome topic.  But the Montana court either dodged or was not given that issue.

One wonders, if the doctor did not help (or could not help), if that too would be grounds for a mistrial?

Will Weight Loss Drug “Alli” (Xenical) Be Next on Class Action Lawyer’s List?

Monday, August 24th, 2009

The FDA has indicated there may be an association between a weight loss drug and liver disease.  In its over-the-counter form, it’s sold as Alli.  In prescription strength, its Xenical.  Either way, the primary ingredient is Orlistat.

The story broke on the AP.   The source of the news is the FDA “early communication about an ongoing safety review,” found here.

With the recent focus on the risks of common medications (Tylenol) as well as the Michael Jackson homicide case, it will be interesting to see if the name “Alli” appears in lawyer ads soon.

California Supreme Court OK’s Employer Videotaping Employee’s Office – and no one cares?

Tuesday, August 18th, 2009

The California Supreme Court issued an August 3 opinion holding that an employer could secretly videotape an employee’s closed office without invading workplace privacy rights — and only a few news agencies mentioned the case by name (about 50 outlets referenced the case generally).  To give you an idea of the short attention, here’s the one page coverage in the L.A. Times.  You would think a state supreme court OK’ing secret videotaping of employees would be an catchy news story..?

The case is Hernandez v. Hillsides, Inc. where an employer secretly placed a wireless videocamera in an employee’s office (which had a door lock and window blinds, which could be closed).  The court held that, while the element of “intrusion” was met, the affirmative defenses to “offensiveness” carried the day.

The defendant is a former orphanage which is now an overnight facility for abused children.  The facility had a computer policy against accessing x-rated sexually explicity websites.  The employer learned that two computers — one in a public area and one in a closed office — were being accessed at night for internet porn viewing.  The employee who used the office often failed to log off at night.  She was never suspected.

The employer, motivated both to stop the porn-viewing AND to catch the person, initially tried to put a camera on the public computer but could not sufficiently hide the computer.  He then placed it in the closed office and swore under oath that the camera was there for three weeks, he never viewed it during normal business hours, he never saw anything invasive, he kept the video camera screen out of reach of other employees, and… he saw nothing.

Also interesting, the court found that there was no requirement that the defendant try alternative, less intrusive methods (although the court excluded that other methods would have worked).

The employee apparently found the camera one day with the red light blinking, the cord plugged in, and the equipment warm to the touch.  She was concerned because she often closed her office door to change or have private conversations.  The court acknowledged, “we appreciate the plaintiffs’ dismay over the discovery of video equipment… nothing we say here is meant to encourage such surveillance measures…”

The case is fact-rich and may, indeed, be so fact-specific that it could be distinguished from other workplace situations.  This opinion should, by no means, be viewed as the “green light” for employers to videotape employees.  That said, especially for California, which we view generally as a plaintiff-favoring jurisdiction, it is remarkable that the court unabashedly relied on the self-serving testimony of the employer — to the point that summary judgment was granted.

Tivo Buys Bull, Wins Case..?

Wednesday, July 8th, 2009

Imagine trying a $100+ million dollar case in a small town.  Would it be appropriate for lawyers involved in such a case to try and win some goodwill in the community for their client before that case?  Or are we simply tying together two wholly separate incidents?

Apparently Marshall, a town in east Texas, is a hotbed of infringement lawsuits.  TiVo, the DVR-provided, sued Dish Network there and reportedly bought a local girl’s champion bull before a competition.  The bull won and the lawyers gave the girl the money.  Sites like TechDirt, RapidTV News, and The Prior Art covered the story.

We’ve mentioned before the practice of a law firm editing their own website right before a trial to make them appear more experienced or focused on the subject matter of the lawsuit.  This isn’t necessarily contact with potential jurors (who aren’t supposed to be researching anyhow) but does make sense if the case gets media attention.  Buying livestock seems like an interesting notion too…

Florida’s New Seatbelt Law Goes Into Effect June 30

Wednesday, July 1st, 2009

Florida passed a law, effective June  30, that police can pull over and cite a driver for not wearing a seatbelt.  Under the just expired old law, police needed another basis for the stop.  Violators are looking at a $30 fine.

Most vocal safety and consumer groups laud the passage of the law which brings Florida in line with the slight majority of states which have similar laws (29 of 50 states).  According to that News-Press article, 4 out of 5 Florida drivers already use the seaatbelt, although its a few percentage points below the national average.  A local personal injury lawyer gave some pretty clear coverage of the law, here.

Downsides to the law?  There is some concern that the motivation is revenue-generation (easier traffic tickets) rather than safety.  Likewise, there is also some civil rights concerns that this is simply a pretext to pull over someone.  Others might suggest this is further degradation of personal liberties.  That said, a Google search on the new law failed to find anyone who articulately raised a thoughtful dissent to the law; instead, opponents tend to rant, like you find in the commenters to this Miami Herald piece.

Florida Trend Magazine’s 2009 Legal Elite

Monday, June 29th, 2009

Florida Trend Magazine (July edition) hit the stands last week with its annual list of Legal Elite in the state of Florida broken down by areas of practice.  The list represents about 2% of all Florida lawyers.

Thank you for those who were kind enough to submit my name (under Appellate).  I very much appreciate it.  Glad to see so many familiar names on the list as well.

The entire list is here.

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