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

November 14, 2011

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

November 4, 2011


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

October 26, 2011


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

October 25, 2011

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

October 21, 2011

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!

October 18, 2011

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

October 17, 2011

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. 

Friday Florida Law Update- Read the Fine Print!

October 14, 2011

TGIF all, and welcome back to the Friday Florida Law Updates portion of the blog!  I’m not gonna lie, about 80% of the fun in this blog is finding a good photo.  Today, we have a case about a poor judgment debtor having his wages garnished.  I punch “garnishment” into the Google image search, and voila!  Look at that beauty above!

Today we look at USAmeribank v. Klepal, 2011 WL 4809107 (Fla. 2d DCA Oct. 12, 2011).  In Klepal, an individual obtained a $43,000 bank loan apparently unsecured by any property.  The promissory note, among what I am sure was about 50 other provisions, included a statement that the borrower consents to the issuance of a continuing writ of garnishment or attachment against my disposable earnings . . . in order to satisfy, in whole or in part, any money judgment entered in favor of the Bank.” 

A writ of garnishment is a tool by which a creditor can obtain a court order requiring a party owing money to the debtor, such as a bank where the debtor holds money or, in this case, the debtor’s employer, to furnish the funds directly to the creditor. 

Sure enough, this $43,000 loan resulted in a $51,000 judgment for the bank after Klepal defaulted.  In its attempt to collect on the judgment, the bank attempted to have a continuing writ of garnishment issued on Klepal’s employer.  At the trial court level, Klepal had the writ dissolved due to the head of family exception to Florida’s garnishment statute, which protects a head of family’s wages from garnishment.  (Florida is a renowned debtor-friendly state). 

On appeal, the Second DCA held that the provision of the note agreeing to a continuing writ of garnishment on Klepal’s disposable earnings constituted a valid and conspicuous waiver of the “head of household” exemption.

The moral, as always, is to READ THE FINE PRINT when signing any significant contract!  


Belated Thursday Poker Blog! The Streak Continues…

October 7, 2011

Good morning everyone!  We will have two posts for you today, including this late Thursday poker blog update!

Last week, we chronicled the ridiculous run of fortune (and some good play too ;-D) that has produced about $1300 in profit in a low-stakes home game in just over two months.  Our normal Wednesday game was shifted to Thursday last night and yes, the streak continued!

We had only seven players this week, meaning only 2 would make the money.  After a steady but under-the-radar effort in Game 1, I missed the money after getting crippled in an AQ v. A9 pre-flop all-in hand where a dirty 9 spiked the river to steal away all my winnings.  If the hand held up,  I would have had the 2nd largest stack and with 3 players left, a heavy favorite to at least make the money.  All you can do is get your money in at the right moment and hope the math works in your favor.  Not meant to be that time…

Game 2 featured a similar start, as I slowly chipped my stack up above average with some small pots early.  The key moment for me came on a large semi-bluff.  With the blinds still reasonably small (75/150 I believe), I decided to limp into a multi-way pot with 3-4 of hearts, some classic suited connectors as depicted above.  Now, most pros will say that 3-4 suited is too low when it comes to playing suited connectors.  I tend to disagree not just because a 4 high flush is just as valuable as a 7 high flush in my book, but also my table image really helps disguise my hand when something goofy like a flop of A-4-4 happens. 

To me the only mandate with baby suited connectors is having the discipline to disregard making one pair, realizing that you’re not playing the hand to make a pair of 4’s. 

So anyway, in a pot of about 4 players, the flop comes Q-6-2 with 2 hearts.  I have 12 cards that will either make a flush or straight for me (9 hearts and 3 non-heart 5’s).  My friend in the big blind bets out about 300, I raise, not call, to 800.  As we discussed early in the blog, the raise is a more effective play here for several reasons.  One, we’re disguising that we are on a draw, and are more likely to get paid off when we hit our hand than if we just call until the 3rd heart comes.  Second, why not try to win the pot here?  Betting is the too-often-forgotten second way of winning a pot aside from having the best cards. 

My friend does go ahead and call my raise.  The turn brings another 2, and not the heart I need.  My friend bets out AGAIN, this time approximately 800 chips.  This is an unorthodox move, somewhat thwarting yet a 3rd usual benefit of semi-bluffing in position, the free river card.  Normally when you raise in position on the flop, your calling opponent will check to you on the turn, giving you the option of checking the turn if you indeed miss your draw. 

My friend has denied me that opportunity by betting out.   At this point, I have about 2500 chips.  I can fold, declining to exhaust my entire stack on 3-4.  I still have the odds to call, but I hate dwindling my stack down to 1700 if my draw doesn’t hit.  Or, option 3, I raise him again ALL IN!   After a few moments, he shows a Queen (top pair) and mucks his hand. 

In poker, you can’t live unless you’re willing to die sometimes 🙂   

The cards were pretty friendly to me after that, and a sweet victory came about 40 minutes later!

We will be back with a Florida Law Update later today…

Wednesday Federal Employment Law Update- Hostile Work Environment

October 5, 2011

Hope everyone had a great day today.  Why does today’s post start with a photo from the 1996 movie, Primal Fear?  Well, below we will talk about a case involving a claim of a sexually hostile work environment against a Roman Catholic diocese.  Anytime I think of a sex scandal against the catholic church, I am instantly reminded of this underrated movie.   Want to talk about star power?  It starred Richard Gere before he started focusing on musicals, breakout performances by Edward Norton and Laura Linney, and a great ensemble cast of character actors — John Mahoney (from the TV hit Frasier), Maura Tierney (before her run at ER and a classic Elizabeth Perkins Hall of Famer, my name for actresses which I am not sure whether we are even SUPPOSED to think are beautiful), Andre Braugher (fromHomicide:  Life on the Street), and Alfre Woodard.

My only issues with the movie?  One, the title.  I don’t really get it.  And two, the murder victim in the movie is a famous Roman Catholic clergyman named Archbishop Rushman.  I’m sorry to throw generalizations out in an employment law blog, but without literally pointing out the problem here, it seems like “Archbishop Flaherty” or “Archbishop Lorenzo” may have been a slicker fit.  Yet I digress…

In Rojas v. Roman Catholic Diocese of Rochester, 2011 WL 4552460 (2d Cir. Oct. 4, 2011), the Second Circuit affirmed summary judgment on the Plaintiff’s claims of sexual harassment, hostile work environment, and retaliation against her former employer based on alleged harassment by a fellow employee.  Plaintiff sued the fellow employee as well, a priest, but did not appeal the summary judgment issued to him by the lower court.

The key issue in the case was the rampant inconsistencies in Plaintiff’s story between her complaint, her deposition testimony, and her sworn interrogatory responses.  In sum, there were key inconsistencies on the issues of 1) whether the priest was her supervisor (key for imputing liability to the employer); 2) the severity of the conduct; and 3) when and how she reported the conduct.  The inconsistencies were so egregious that the lower court held, and the 2nd Circuit agreed, that no genuine issue of material fact could be raised to defeat summary judgment.  Specifically, the Court held that, “in certain cases a party’s inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.  This is such a case.”