Peter Halmos -- Will His Ship Ever Come In?

That toe-tappin' crippled yacht case is slowly limping to port, as the parties prepare their post-trial proposed findings of fact and conclusions of law.

And the beat goes on.

It took me all morning to read Steve Marino's excellent 85-page brief, which sets forth in exquisite detail the mountain of commercial litigation required to get the parties to this point (and they're not even done yet).

I guess one SIMPLY AMAZING! thing that fascinates me about this case is the uncontrollable variables that have entered into what should otherwise be a straightforward insurance coverage dispute.

Between the lawyers, the rulings, the clients and the witnesses you have a near-perfect s@#tstorm of what can go wrong when parties engage in f*$k the costs, balls-to-the-wall litigation.

It's almost an ideal case study for commercial litigators in that the subject matter could be anything -- widgets, yachts, whatever -- and the disputes seem both wildly impossible yet depressingly familiar to any of us who do this for a living.

Turning back to Roy Black's intriguing suggestions for UM Law, how in the hail do you teach kids to handle crap like this?

Seriously, how do you -- or even should you -- teach law students to do this type of litigation effectively?

Efficiently?

In such a way that they don't leave the office at night stupefied, screaming at the walls, drinking themselves to oblivion on a Tuesday, and allegedly challenging their girlfriends to naked post-shower sword fights?

"Facts Shall Not Be Rambling Narratives" -- Great, Now You Tell Me.

Rambling Narratives Order

Who among us has not, from time to time, strung a random collection of facts and citations together and just filed the sucker?

Well apparently this is now frowned upon, at least in certain epic toe-tapping broken yacht cases:

2.  Facts shall not be rambling narratives, but shall refer specifically to pages/lines of testimony and/or pages or paragraphs or lines of admitted exhibits.

This is a fantastic practice tip -- I only wish someone had clued me into this a few decades ago.

For example, here is a sampling of my last findings of fact that I submitted recently in a federal case:

By the waters of Leman I sat down and wept ...
Sweet Thames, run softly till I end my song,
Sweet Thames, run softly, for I speak not loud or long.
But at my back in a cold blast I hear
The rattle of the bones, and chuckle spread from ear to ear.
A rat crept softly through the vegetation 
Dragging its slimy belly on the bank
While I was fishing in the dull canal
On a winter evening round behind the gashouse
Musing upon the king my brother's wreck
And on the king my father's death before him. 
White bodies naked on the low damp ground
And bones cast in a little low dry garret,
Rattled by the rat's foot only, year to year. 
But at my back from time to time I hear 
The sound of horns and motors, which shall bring 
Sweeney to Mrs. Porter in the spring.
O the moon shone bright on Mrs. Porter 
And on her daughter
They wash their feet in soda water

(These findings were actually upheld on appeal.)

Don't even ask me about my conclusions of law!

Judge Brown Vindicated; Let's Have a Bench Trial!

Judge Brown Vindication

Peter Halmos' last-ditch toe-tapping effort to have Judge Brown's order of reference vacated has been denied by Judge Martinez.

In a comprehensive order, Judge Martinez addresses specifically the "coerced consent" issue, the "mediator then adjudicator" issue, and the SIMPLY AMAZING(!) "judicial rhetoric" issue.

Here's a taste from footnote one:

Before Judge Brown asked any either party about consent individually, however, counsel represented to Judge Brown that the parties had all agreed to consent.  Judge Brown asked the parties one at a time regarding consent only after counsel made that representation.  Plaintiff's motion omits any mention of this portion of the transcript.

Translation = I've got your back!

Now go have some fun spending endless days proving up damages to a leaky boat.

"I Award You No Points, and May God Have Mercy on Your Soul."

To my friends in the media:

There's a little trial over somebody's damaged boat that may or may not start tomorrow in Judge Brown's courtroom.

Heard it could be interesting.

A few points arising from the eve-of-trial Halmos motion linked to above:

(1)  Could the process of consent to Magistrate jurisdiction truly be as depicted?

(2)  What to make of trying a case -- non jury -- after presiding over a confidential mediation of same?

(3) "[F]lamboyant grammatical form" (page 17)?

What on earth is he talking about?

Like I said, should be interesting.....

Joe Klock Has a Problem With Magistrate Judge Brown's......Language!

Simply amazing(!):

4.  The continual use of demeaning and insulting language in Court orders when dealing with Plaintiffs and their counsel evinces a continual prejudice against them inappropriate for the United States District Court.

Does anyone have any idea what he's talking about?

I also like this passage:

To have to scramble in the midst of trial preparation to turn around a detailed response in two days is unnerving.  To then have a judge say that the deadline was sort of fluid is, to borrow the Court's phrase, "amazing."

Hey, that's my line!

The Doomsday Cometh.

Let's see, what famous events occurred on May 3rd?

Oh, you had the Herald in 1987 reporting on Gary Hart's dalliance with Donna Rice, ending Hart's otherwise promising bid for the Presidency.

The Luftwaffe bombed Exeter back in 1942.

And of course General Lee decisively defeated the Union Army, which began their withdrawal on this date in 1863 in the bloody Battle of Chancellorsville.

Happy times, to be sure.

But nothing to compare with this:

This case will commence on Tuesday, May 3, 2011 at 9:30 A.M.  This case will proceed that week and the first three(3) days of the following week.  This case will resume Monday, May 16 through Wednesday May 18th, and then continue Monday, May 23rd.

Ok, I can't even follow that crazy trial schedule, but I'm pretty sure everything will proceed smoothly and without incident.

May God have mercy on our souls.

Emergency Verified Motion To Have Judge Brown Speak With Judge Bailey!

Emergency Motion to Have Two Judges Speak to Each Other

Wouldn't you like to be a fly on the wall on that conversation?

BTW, there's some good stuff in the email discussion between the lawyers attached as Exhibit C (Judge Brown had earlier denied the motion for not having a certificate indicating that counsel conferred).

Simply Amazing! And the Beat Goes On!

Simply Amazing! Order

I can't adequately do this Order justice, you'll have to just read it yourself.

A few highlights and questions.

(1)  Like the "Tale of Two Cities" intro.

(2)  Shouldn't sanctions orders have findings?

(3)  "Simply amazing"!

(4)  "Almost laughable"

(5)  "not in this instance"!

(6)  "caught with their hand in the cookie jar"

(7)  Federal Rules and Local Rules "mere suggestions."

(8)  Deft switch to criticizing defendant's response.

(9 ) ... wasting "trees".

(10) "The history of this case is self-explanatory."

(11)" .... and the beat goes on."

(12) Sanction includes letter being introduced without authentication -- ouch!

Seriously, though, the sanctions as ordered seem like they will be difficult in practice to actually implement in a trial setting, but who knows -- things have turned out pretty well in this case so far.

Judge Gold's Mindfulness Campaign is Already Working!

DeniedasAbsurd

Last week at the FBA luncheon Judge Gold delivered a tremendous message of mindfulness in the practice of law, and we're already starting to observe concrete, positive results.

For example, after I served a purely tactical 57.105 motion on opposing counsel the other day, the lawyer called me blabbering on as usual about my "bad faith."

Rather than getting into a shouting match about professionalism I simply asked "how does my motion make you feel?" and we suddenly had a really nice dialogue about organic yogurt and green tea.

So I think David Pollack's skepticism is unwarranted.

Also, per Dennis Kainen's question, I see judges are likewise starting to jump aboard the mindfulness bandwagon.

Here's a recent order from Magistrate Judge Brown that denies a motion for clarification "AS ABSURD":

The Court finds this motion totally disingenuous. One need not be a lawyer to understand that all responses to all discovery propounded by plaintiffs as of [December 21, 2010] shall be delivered on or before Monday, January 31, 2011 (emphasis added), means all responses to all discovery propounded as of the date of said order. While defendants suggest that they "seek clarification" - no clarification is needed. Perhaps it might be worth pondering ... what part of "all" do you not understand? But - it doesn't end there.

Defendants - in an attempt to somehow confuse the obvious - suggest that because they weren't seeking an extension in the motion for document production they weren't sure if this order pertained to same. There are two problems with that absurd argument: (1) the deadline given to defendants was already an "extension" since it was more than thirty (30) days from the date of  the order - much less from the date the discovery was propounded; and (2) if the confused defendants didn't understand this, and they didn't (by their own admission) ever seek an extension for the document production - why did they wait until almost one month after that deadline to file this motion?

The deadline for completion of discovery is in May, 2011. Therefore, and the Court being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:

1. This motion for extension is GRANTED. The motion for clarification is DENIED AS ABSURD.

This seems harsh I agree, but think how much worse this Order could have been!!

Footsie Case Inches Closer to Trial; Defendant ASSUMES Something!

Defendant Assumes

You know that little case involving some damage to a few boats yachts, well it appears to be inching closer to trial.

However, on the eve of trial, there may possibly be a medical issue involving Peter Halmos, necessitating an emergency motion for continuance.

We wish Mr. Halmos well.

Meanwhile, the Court has denied the latest motion for sanctions, this time by Defendants, and the Court adds its usual rhetorical flourish:

The Court finds there is one simple fact missing from this motion that requires denial of same ... there is simply no showing that plaintiffs, in fact, had these documents in their possession. Suggesting that they must have ... should have ... gotta have ... doesn't change that fact.

This is a motion that is on the borderline of being in bad faith.

The Court then concludes:

The Court has previously warned defendant not to continue to attempt "to kill an ant with a shotgun". To the extent that defendant ASSUMES the Court has any prejudices against plaintiffs it would be wise to understand the differences between disagreements with who runs this Court verses a lack of objectivity regarding the case.

Exactly!

When you ASSUME the Court has any prejudices against plaintiffs it would be wise to understand the differences between disagreements with who runs this Court verses a lack of objectivity regarding the case, you make an ASS out of U and.....well, I'm gonna stop now.

Important Tip for Deponents: Don't Look at Anything.

Halmos Note Order

More fun and games in the never-ending, endlessly entertaining Pete Halmos yacht insurance dispute, now hitting docket entry HOLY CRAP I CAN'T BELIEVE THE NUMBER OF DOCKET ENTRIES:

This matter is before this Court sua sponte. The Court was contacted regarding an issue in a continuing deposition of Mr. Halmos taking place on January 26, 2011. The issue had to do with a refusal on the part of plaintiff( s) to produce a document looked at by Mr. Halmos during the course of that deposition (see 6 et. al of the deposition).

This Court instructed plaintiffs to produce that document for the Court to review in camera and to produce the transcript of the pertinent part of the deposition. This was done. The Court has now reviewed both and finds there is nothing of evidentiary value, or discovery value in the document withheld, it's not really a summary, and at best it might be said to be some sort of index to other documents ... and it takes a little stretching to say that.

Ok, let's break this down.

First off, what the hail does any of this mean?

How can it be possible Mr. Halmos is still being deposed this late in the case -- I thought the matter was set for trial in a few weeks.

Then there's the issue of the document -- unless there's a predicate laid in the deposition (such as refreshing memory or some such), what would be the possible basis to request the production of a document looked at by a deponent, or even to order that it be produced for in camera review?

Then you got to love Judge Brown's description of the document -- it does take a little stretching (toe-tapping?) to say that!

I Get Paid By the Exclamation Point!

Well, I'm sure sometimes it must seem that way.

But they certainly have their uses.

For example, here's an excerpt from a sanctions order in a case that, if you read this blog, you may have heard me mention once or twice.....

What that response does not address, however, is that plaintiffs, themselves, reinforced that understanding...after the hearing! . . . . Apparently the Court was not the only one besides the defendant that believed there were only two issues remaining!  This Court is completely unable to reconcile what happened prior to and including plaintiffs' only filing of August 27, 2010, with the position plaintiffs now attempt to take before this Court.  It is, quite simply, astonishing!

Yes, I agree, this whole case is astonishing.

The Court then requires plaintiffs, over the threat of a $5k a day penalty, to sign the disputed settlement agreement:

5  Plaintiffs shall execute same without any additions, corrections, deletions or extraneous markings of any kind (ed. note -- how about a smiley face?) and return same to defendant within five (5) days of receipt of same.  A return of the release with any of these 'changes' shall be deemed by the Court to be no return at all.

6. Based on a finding of Contempt, a fine of $5000, per day, will be imposed for every day after the five (5) days said receipt is not returned, properly executed.

Question -- what is the point of compelling an actual, physical signature -- stray mark-less and properly executed (whatever that means) to a settlement agreement?

Wouldn't it be sufficient for the Court to simply find that the parties reached an enforceable agreement and order compliance therewith?  What does the forced signature/properly executed/no stray marks add?

Oh well, that's why I just write up these stupid blog posts.

Plaintiffs' request for stay is equally amusing:

This Court's Order puts Plaintiffs between a rock and a hard place -- sign the settlement agreement, potentially relinquishing Plaintiffs' rights on appeal, or suffer "$5000/day" in fines and reserves jurisdiction for yet more fines as the price for exercising one's constitutional rights to review an order of a judge.

Well, I guess if you put it that way.....

Magistrate Judge Brown Denies "Extension of Mercy" For Lack of "Extremely Good Cause."

Extremely Good Cause Order

Hey, I just report this stuff, but that  "holiday somnambulance" a/ka/ "extension of mercy" motion has been denied for lack of "extremely good cause."

This may be a looser standard than Iqbal.

BTW, has anyone heard back from Mr. Browning?

Joe Klock Asks Magistrate Judge Brown for an "Extension of Mercy."

Kids, when you need to ask a judge for an enlargement of time, this is how you do it:

This request is not meant to delay any matters before this Court.  The Order was issued in the middle of the holiday season, and as Plaintiffs' counsel clearly was not working as hard as the Court, were not addressed until after New Year's.  Moreover, if the extension of mercy is not sufficient cause, then Plaintiffs would suggest that waiting until after the pretrial stipulation may narrow the issues that the parties intend to try and the evidence which they intend to offer.

Counsel for the Plaintiffs, JC Atorcha, emailed and called counsel Robert Browning, in a good faith attempt to confer as to whether or not INA would oppose such relief.  Undersigned counsel has not heard back from Mr. Browning, who may or may not still be celebrating the holidays.

Indeed, that may or may not be a photograph of Mr. Browning taken mid-revelry earlier this morning.

(I'm sure he'll get back to JC later on today.....)

Magistrate Judge Brown Rules on "Out of the Blue" Peter Halmos Filing!

Pointless Notice Order

I think adding an exclamation point when citing to Local Rule 7.1(a)(1) and (3)! is a nice touch.

11th Circuit Reverses Magistrate Judge Torres and Uses Exclamation Point!

We've already been through the use of exclamation points in blog posts, in orders, and much delight has been had along the way.

Now, suddenly, out of nowhere, the 11th Circuit has decided to weigh in on the exclamation point debate in a big big way -- oh hail, I'll let the 11th explain it:

Jaguar failed to plead the administrative exemption as an affirmative defense in its Answer. In the fourteen months between the filing of its Answer and the commencement of trial, Jaguar never moved to amend its Answer to include the administrative exemption. Jaguar also did not raise the issue of the administrative exemption during discovery. The only time Jaguar raised the issue prior to trial was by inserting it in one line of the Joint Pretrial Stipulation and in the proposed Joint Jury Instructions, to which Diaz objected. Jaguar did not raise the issue during the pretrial conference and the district court did not include the issue in its Omnibus Order Following Pretrial Conference. If ever there were a classic case of waiver, this is it!

You don't say!!

(You can check out the docket below here).

Magistrate Judge Brown Refuses to Sanction Plaintiffs!

I guess that's good news?

Read the order and see for yourself:

Interestingly, and not surprisingly, the response starts with attacking the Court and then jumps into the argument made at the hearing.  The first paragraph of the order to which this is a response begins with the fact that "[N]o law has been cited for the filing of "objections" to a hearing...." and "[T]o the extent the Court construes same as motions (sic) again they violate Local Rule 7.1(a)(1)".  This is totally ignored in the response.  Apparently things like following the law and the local rules take a significant backseat to ranting and raving and attacking the Court.  Nonetheless it is those very rules and laws that govern our practice and procedure.

The ranting includes using a statement made by the Court after the plaintiffs filed their objections to the hearing (in D.E. 1094) as justification for the filings they made before any such statement was made!

It goes on (downhill?) from there.

Does Anyone Really Care About Time?

I don't know if you guys know this, but Magistrate Judge Brown is presiding over a very interesting case.

So interesting that the Judge is requiring the plaintiffs to explain in detail what happened from day one to the date an enlargement of time is sought:

This matter is before this Court on Plaintiffs' Motion for Extension of Time ... (D.E. 1177).

The Court has considered the motion and all pertinent materials in the file.

The reasons for this motion, in the short run, are certainly reasonable. The question that arises is why, in so many situations, are plaintiffs needing these extensions. What has happened from the beginning of a situation (as opposed to just the last few days before deadlines) that requires said filing(s)?

The Court being otherwise fully advised in the premises it is hereby ORDERED AND ADJUDGED that said motion be and the same is hereby GRANTED. The reply shall be filed on or before Tuesday, December 7, 2010. No further extensions will be considered. However, any future motions for extension of time shall include a history from the beginning of the event that resulted in the need for an extension of time.

 I agree!

In fact, why stop at the "beginning of the event"?

(There may be a need to be flexible with page limitations)

Judge Brown Gets Results!

Amazingly, somehow, the Podhurst and Motley Rice firms have agreed on a location for their upcoming mediation:

Pursuant to the Court’s November 24th, 2010, order, the Parties have met and conferred regarding mandatory mediation and pending discovery requests. Parties have agreed to hold mediation at the Podhurst Offices at a time convenient for the mediator, Mr. Shapiro, and counsel. Further, Podhurst has agreed to voluntarily withdraw the pending discovery requests until after mediation has taken place and if mediation is unsuccessful.

 This is a clear victory for the Judeo/Legal system.

Magistrate Judge Brown Has Another Interesting Case!

Judge Brown Has Another Case

Longtime readers know I am a great fan of Magistrate Judge Brown so I'm pleased to see he's got more on his plate than toe-tapping footsie follies.

For example, here he is presiding over one of the most painful episodes in all litigation -- a fight over where to hold a mediation.

That mind-numbing dispute is almost as idiotic as fighting over the location of a deposition, but possesses a bit more irony given that the dispute is over where to meet to try to resolve the underlying dispute.

Anyways, Judge B handles it as only he can:

Rarely, if ever, in the Court's thirty-eight plus years of experience in the Judeo/Legal system has the court seen "so much about so little". Motley Rice does not want to attend mediation at the Podhurst offices. The reasons for same are, to be kind, unclear. This is a mediation - not a trial...the Podhurst employees will not be jurors deciding this matter. Motley Rice can bring an electronics expert to check the "break-out room" Podhurst offers to be used, so as to make sure it isn't bugged.

The Podhurst firm doesn't want to go to Plantation - it is too inconvenient. The Podhurst firm litigates all over the country .. .indeed all over the world ... but Plantation is too inconvenient. Apparently there are no direct flights from Miami to Plantation. Podhurst's position is bolstered, in part, by the allegation that "other interested Parties ... have indicated an intent to attend the mediation ... " (page 3 of the response). "Edward Montoya, whose work with Motley Rice is the subject of this lien, needs to attend the mediation. Counsel for some of the Defendants involved... have also indicated that they would attend the mediation ... ". (ld.) Apparently someone needs to point out that mediation is NOT a public proceeding. See Local Rule 16(g)(2) ... and while on the subject of actually citing law, the Court notes that neither party cited any as regards the location of the mediation ... probably because it's more a matter of professionalism than adversarial legality.

Thanks to the loyal tipster who forwarded this along -- your No-Prize is in the mail!

I don't say this often, but read the whole thing.