Monday Tip for Young Attorneys- Follow Orders or People Die!

Posted November 14, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Hello all, and welcome back for your first young lawyer tip in a while.  I apologize for the impolitic title to today’s post, but it’s the perfect tie-in to my pic of the beloved movie character Col. Nathan Jessup from A Few Good Men.  In a movie that already was excellent for two hours, Jack Nicholson and Tom Cruise put on a heckuva show in the climactic court examination of Nicholson’s character.  Cruise’s character, attorney Lt. Daniel Kaffee, sets up Col. Jessup perfectly by having him wax poetic about the importance of following orders in the Marine Corps, evoking the line, “We follow orders, son.  We follow orders or people die!  It’s that simple!”

Well, this post is meant to convey that message to young attorneys.  Court orders are to be followed to the letter!  If an Order cannot be followed, you better ask for relief from the Order.  I have a recent example to prove this point, which I will share without mentioning cases or names.  Recently, in one of my cases, my opponent and I were under an order to not only procure a mediator, but to set the time and place for mediation.  Most orders referring the parties to mediation simply require the parties to agree on a mediator by a certain date and to complete mediation by another date.  This order actually required the mediation date to be set, even though the parties literally had about a six month window to set it. 

My opponent, apparently used to the more typical referral orders, basically blew me off until the last moment in response to my efforts to set the mediation.  Accordingly, the parties were not even able to agree on the mediator until the due date for the Notice of Mediation.  I thought to myself, “This is no big deal.  We have six months to mediate.  We can let the Court know that we have our mediator, that we’re working so very hard to get the date/time set, that we have clients in California working hard to line up their calendars, etc.  No problem.” 

We filed the Notice of Selection of Mediator and advised the Court that we will advise immediately once we had the date and time set.  That had to be fine, right?  WRONG!  Later that evening at approximately 8 pm on a Friday night, I see an Order striking our notice and scolding both parties for failure to comply with the Court’s Order.  It wasn’t my fault that we couldn’t comply, but deep down I still knew I was wrong for greenlighting the path we took.  We should have moved for an extension rather than taking matters into our own hands. 

Was I happy to get that Order?  Definitely not.  Do I think it was necessary?  Probably not.  Do I understand why it was entered?  Sure.  The court needs to make sure the attorneys are aware of who is in charge.  If we were permitted to slide on that issue, where is the line drawn then?  Would it be ok to send in the pre-trial stipulation late?  Would it be ok not to mark exhibits the way the court wants them marked? 

Follow court orders, folks!!

Friday Florida Law Update- An Episode of Legal Realism

Posted November 4, 2011 by Craig Salner
Categories: Florida Law Updates


Since I have been so bad to the fans of late, today’s blog is in reality a “two-fer,” as we will have a mini-retro pop review down below!  Today’s case involves a classic case of “legal realism,” a concept I learned and latched onto in my first year “Legal Process” class taught by the great Christopher Yoo at Vanderbilt Law School, who once scolded me in the school parking lot one gusty Friday morning on the way to his class for cutting the Torts class that came immediately before his.  Professor Yoo did not appreciate my response of, “Considering how hung over I am, you should be proud that I’m not cutting YOUR class!”   Fortunately though, he did not call on me that day. 

Ahem, so where were we?  Ah yes, Legal Realism.  This concept stands for when a court considers the facts, arrives at the result it WANTS to reach first, then finds a legal hook for doing so. 

In Georges v. Department of Health, 2011 WL 5169407 (Fla. 2d DCA Nov. 2, 2011), Florida’s Second Circuit Court of Appeals reversed a Board of Nursing decision to revoke a nurse’s license and assess $15,703 in costs against a nurse for stealing $10 from a patient.  The Board of Nursing had reversed the recommended finding of the assigned administrative law judge, which was a $250 fine and probation.  On appeal, the Second DCA cited to Florida’s Administrative Code regulations, which called for a maximum $150 fine, reprimand and suspension followed by probation for a first offense absent proof of aggravating factors.  The appellate court found that Nurse Georges was denied her “due process” rights by having such a lofty fine assessed plus revocation of her license without proof of such “aggravating” factors. 

What exactly are aggravating factors in addition to stealing from a patient?  Hiding their pants so they have to go out in the cold in one of those backless hospital gowns?  Putting a laxative in their Jello? 

I submit that the Court simply said to itself, “You know what?  $15,000 and a lifetime ban from the profession over a $10 ‘mistake’ is a bit harsh.  I think this woman’s learned her lesson!”, and figured out a way to reverse it. 

On another note, any case involving a nurse will likely make me dig for a good picture of Nurse Ratched (see above) from the movie, One Flew Over the Cuckoo’s Nest, Milos Forman’s oscar-winning adaptation of the Ken Kesey novel.  Depending on the mood you’re in, Cuckoo’s Nest can range from the funniest movie you’ve ever seen to the creepiest movie you’ve ever seen to the most depressing movie you’ve ever seen.  If you have never seen it, make it a priority. 

Jack Nicholson plays a walking misdemeanor pretending to be crazy to stay in the otherwise cozy confines of a mental institution as opposed to serving jail time while getting under the skin of the entire hospital staff, most notably the hard Nurse Ratched, played by Louise Fletcher.  Jack Nicholson is the only actor who of our lifetime who could have pulled off this role except for maybe Robert DeNiro, though DeNiro would have spent 2 years studying for the role and probably would have oversold it.  My first watch of this movie came while hanging with my brother Neil, and we were both howling with non-stop laughter for the first hour before things got a little more serious. 

Wednesday Federal Employment Law Update- Epilepsy and the ADA

Posted October 26, 2011 by Craig Salner
Categories: Federal Employment Law Updates


Welcome back for your Wednesday federal employment law update!  Today we discuss an unfortunate result which I am sorry to say was the result of a plaintiff’s strategic error. 

In Ramos-Echevarria v. Pichis, Inc., 2011 WL 5009779 (1st Cir. Oct. 21, 2011), the First Circuit affirmed a summary judgment from the District Court of Puerto Rico in favor of the defendant employer on an Americans with Disabilities Act (“ADA”) claim based on a failure to promote. 

The plaintiff was a part-time cook for the defendant’s restaurant who suffered from epilepsy.  Due to his epilepsy, Plaintiff suffered between 9-16 epileptic seizures per week, some occurring at work.  Due to he and his co-workers’ familiarity with the symptoms, Plaintiff managed to fulfill his duties without risking injuries over the course of his tenure with defendant dating back to 1999.  However, Plaintiff testified that he was denied full-time employment based on his epilepsy.  Plaintiff noted not only direct statements about his condition made by Defendant’s owner at the time of his application for full-time work, but also additional statements made by the owner when Plaintiff first started working there. 

Plaintiff made a tactical error in claiming only that he was disabled, rather than additionally claiming that Defendant “perceived” him as disabled.  Under the ADA, perceived disability is just as actionable as actual disability.  Relying only on actual disability, the First Circuit went through a multi-factor analysis and concluded that since Plaintiff could totally perform his job and was not limited in any major life activity, that he was not disabled and thus could not set forth a prima facie case of ADA discrimination. 

If Plaintiff had alleged perceived disability, he arguably could have proceeded on a direct evidence theory based on his boss’s comments.  It’s hard to understand what this fella’s counsel was thinking….

Tuesday Pop Review- Modern Family Season 3

Posted October 25, 2011 by Craig Salner
Categories: Pop Reviews

Good afternoon all, and welcome back for a Tuesday Pop Review.  Last week, we discussed the new season of The Office, which is struggling through life after Steve Carell.  This week we discuss ABC’s hit Modern Family, which airs Wednesdays at 9 p.m.  Modern Family is in the midst of a third hit season and shows no sign of slowing down.  For those unfamiliar with the show, it revolves around three related households in L.A.  Ed O’Neill (a/k/a Al Bundy) is the wealthy patriarch, who lives with his much younger second wife, a Colombian bombshell, and her young son Manny.  O’Neill’s two kids include a daughter who lives with her husband and three kids and his son who lives with his life partner and their adopted daughter. 

The show is consistently stellar and so versatile that a panel of 20 random fans would likely reveal at least 6-7 different favorite characters, though I would estimate that most fans think that the homosexual couple steals the show.  I couldn’t disagree, as Cameron and Mitchell are excellent.

It leads me to a broader discussion of how prevalent gay characters have become on television.  Approximately 10-12 years ago, ABC’s Ellen became the first show to have a gay lead character.  It was a highly publicized and I even recall a public “countdown” to the episode where Ellen DeGeneris’ character emerged from the closet. 

Since then, the number of gay characters on TV sitcoms and dramas are too many to count.  Just off the top of my head I can think of key characters on Will & Grace, The Office, NYPD Blue, Mad Men, and others.  My question, and unfortunately I do not have a lot of homosexual friends (or at least those that I know of), is whether the gay community considers the movement progress toward the goal of acceptance and equality.  I ask this, not to be controversial, but more because it seems like the characters that I see on television generally create laughs through stereotypical humor.  In other words, should the gay community be happy that millions of American homes are laughing at gay characters for “acting gay?”  Maybe it’s the first level of progress — awareness, and at some point it will not be used as a comedy source. 

It reminds me of similar issues for African-Americans and Jews during the celebrated run of All in the Family, featuring the bigoted main character Archie Bunker.  Fans celebrate this show as a groundbreaking “parody” of our society’s once more widespread ignorance toward diversity.  I would argue, however, that All in the Family, was nothing more than pure marketing brilliance.  It catered both to those who celebrated it as a parody AND to the still signficant segment of the population (especially at that time) who continued to hold a bias or animus toward minorities.   You can’t convince me that half of All in the Family’s viewers cracked up at the show because they shared Archie’s views.

Is there something more to this expanding phenomena of gay characters or is it simply history repeating itself?  I’d love to know your thoughts on it…


Friday Florida Law Update- Contract Damages

Posted October 21, 2011 by Craig Salner
Categories: Florida Law Updates

TGIF all, and what a gorgeous Friday it is for South Floridians!  Today we discuss a case involving damages for a breach of a commercial contract, but more importantly, a case which kicks off with a snide but humorous comment from the appellate court. 

In Net Results, Inc v. Del Monte Fresh Produce Co., 2011 WL 4949872 (Fla. 3d DCA Oct. 19, 2011), Net Results sued over Del Monte’s wrongful termination of a telecommunications consulting contract.  Under the contract, Net Results was required to examine Del Monte’s telecommunications expenses and scope out means to save money.  Del Monte terminated the agreement on the belief that Net Results had not fully performed under the contract.  At the trial court level, a jury found that Del Monte wrongfully terminated the agreement, and awarded damages of $15.7 million. 

In reversing and remanding the case on the issue of damages only, the Third DCA opened with the comment that “[t]his is a business damages case in which the computation of Net Results’ ‘benefit of the bargain’ losses require grade-school arithmetic rather than a ‘damages model’ long on assumptions and short on facts.” 

The overly complex damage calculation attempted indeed extrapolated significant hypothetical performance in the future but overlooked simple issues like Net Results’ operating expenses for performance under the contract.  In remanding the case for a new trial on damages only, the Third DCA emphasized the concept of “benefit of the bargain” damages, which essentially places the parties back in the position they would have been in if Del Monte had not repudiated the agreement, including all operating expenses.



Tuesday Pop Review- We Need Some Time Away from The Office!

Posted October 18, 2011 by Craig Salner
Categories: Pop Reviews

Hello all, and welcome back to Pop Review Tuesday here at the blog.  The Fall season is about a month underway.  As I may have mentioned in a prior post, my wife and I take in very little network programming.  Our television viewing is primarily sports, movies, and a potpourri of cooking/home design/Jersey lowlife stuff.

One of the few shows that we DO watch religiously, however, is The Office.  [SPOILER ALERTS BELOW!].  We are especially tuned in to “Life After Steve Carell,” since the show’s foundation decided to leave the show last year.  After about a five-episode season closing arc centered around who his replacement would be, a windy road that had us flirting with the likes of Will Ferrell, James Spader, Jim Carrey, Ray Romano and Ricky Gervais (reprising his role from the original British version of The Office), we learn early in the first episode that James Spader has become the new omnipresent CEO of the comedy, while Andy Bernard (played by Ed Helms), has taken over as new Regional Manager of the branch. 

While we did know in advance that Andy and other current employees (i.e., Darryl and Dwight) were vying for the position, I think it was a pretty weak move to make a cliffhanger out of it, only to simply promote someone from within when viewers have no expectations of the move having a significant impact on the show.  Also, Andy was known from prior episodes to be one of the weaker sales employees, so it really just makes no sense all around.  To make things even more weird, Spader’s character’s a little too omnipresent for a company with multiple branches, yet I digress.

The season’s gotten off to a rocky start, with some episodes being real downers, such as one where Darryl had to be talked out of quitting when his former buddies in the shipping warehouse jointly won the lottery, as well as another recent episode where we learn that Andy has some daddy issues.  I mean c’mon, let’s just move it to 10 pm and make it an hour if we want to turn it into a drama. 

I would say that The Office has about 2 episodes left before it loses DVR status.  Anyone have another show they would suggest I try?  The only other network show we watch is Modern Family… 

Monday Practice Tips for Young Attorneys- Trial Mode, Part 1

Posted October 17, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Hello all, hope everyone had a fun and safe weekend!  Depending on a number of factors, between the firm you are in to an unusual type of case to pure luck, your first trial experience could come at a variety of different moments in your career. 

Today, we will start a series of little tips to help young attorneys deal with trial preparation. 

The first tip is to be prepared to see new versions of whichever partner you will be trying your case with.  The pretty cool character who never seems to sweat may well turn into an impatient and at times downright unfair guy or gal as the days and hours before trial fade away.

The best advice I can give is 1) to assume this will happen; 2) emotionally prepare yourself; and 3) overcome it.  Trial is a pressure-packed atmosphere, but the most intense for the head partner who has the client in one ear, you in the other, reams of documents to be familiar with, and the culmination of one or more years of work on a case in front of them.  Once the battle is over, that person you admire and enjoy working for will be back, and those hard times you dealt with in preparing will bring you closer professionally, much like those fisticuffs you had as a kid with your sibling brought you two closer together.