Shorter Gene Stearns: It's All Judge Ungaro's Fault.

I understand there may be a certain amount of settlement posturing to all this, but is Gene going overboard with his very public and very direct "Judge Ungaro screwed up" approach to appealing the BankAtlantic securities verdict?

I mean, this is a guy who already said it was the worst-tried case he's ever seen in his life, and that includes every episode of Judge Judy plus that old Boston judge from The Verdict (ok, I added the last part).

In today's DBR, Stearns continues to focus exclusively on Judge Ungaro:

"I don't blame the jury," Stearns said. "The judge instructed them that Alan Levan made four false statements. And that is, I believe, unprecedented for a judge to tell the jury that one of the defendants made false statements."

Gene also didn't like how the Judge handled the damages expert:

Stearns said Preston's testimony about damages rested on several factual assumptions that the jury did not assess: "The judge refused to allow the jury to decide the factual questions upon which her testimony was predicated. Very puzzling."

Puzzling?  It's downright perplexing!

 In their response, posted here, the plaintiffs take this argument head on:

Even though the Court was not required to submit a special interrogatory regarding Preston’s assumptions to the jury, the jury clearly had the opportunity to consider and reject the assumptions. Preston’s assumptions (found at paragraph 10 of her report, PX726) were published to the jury during her testimony. Trial Transcript (“Tr.”) 2668-69. Defendants vigorously cross-examined her about the assumptions and the significance if Plaintiffs failed to prove them.6 Moreover, the instructions given by the Court were absolutely clear that unless the jury first found liability the issue of damages was not to be reached (DE 635 at 23) and specified that it was up to the jury to decide whether it would rely on the expert’s opinion. Id. at 6. Given these instructions, it is implicit in the jury verdict awarding damages based on Preston’s testimony that the jurors found that the factual assumptions she relied on were proven.

If Judge Carnes gets this, given his penchant for quoting old song lyrics, I hope he updates his references a bit (I've given him a hint above).

This Time Judge Carnes Cites An Old Opera!

Listen, anyone who reads this thing knows I'm all for historical references, pop cultural references, musical references, literary references, you name it.

And so is Judge Carnes!

But I think at this point Judge Carnes is just playing with us.

Get a load of this opening in an interesting opinion dealing with the Florida Bar's certification process:

This case reminds us of the observation of the Grand Inquisitor in Gilbert and Sullivan’s The Gondoliers. Upon finding that all ranks of commoners and servants have been promoted to the nobility, he protests that there is a need for distinction, explaining that: “When everyone is somebody, then no one’s anybody.” 1 The same is true of a state bar’s certification process. If every attorney who practices in an area is certified in it, then no one is anybody in that field. The easier it is to be certified, the less that certification means.

Ok, that's a long way to go (all the way back to 1889 in fact) to make the point that you dilute the exclusivity of an honor when you expand the critieria for membership.

Didn't Groucho say something similar, only funnier?

Anyway, then the Judge goes on to affirm the district court's holding that an attorney, who was once certified in family law but was denied recertification based on negative confidential peer reviews, has no "entitlement" or constitutionally protected property interest in same, and no "right" to confront her peers.

Maybe the Grand Inquisitor reference has a deeper meaning?