Category Archives: Law: Practice

Could This Be the Best Argument for Taking Drugs?

I don’t know exactly what the Great Grimmelmann’s “inner stoner” has been smoking, but I think we could all do with a hit of it.

Here are two cute ideas for law reform:

Stoner Law Reform: Fee-Shifting. I think it’s interesting. Because the marginal utility of money is not linear, I’m still not sure about it, but it’s still interesting.

Stoner Law Reform: Trial by DVD. I really like this one.

He promises more to come. (I hope he has a prescription for that stuff. It does seem to be what the doctor ordered.)

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Do People Really Do This Stuff?

Two items from today’s news raise similar questions about whether people — even lawyers — really are ready to exercise their legal rights in socially awkward situations. (And if even lawyers are not, do those rights mean anything?)

First, this from the NYT “Haggler” column, the New York Times’s consumer meta-advocate. The column, Restaurant Bill Shock? Some Readers Say ‘Au Contraire’, is a followup to an earlier one about someone going to a very fancy restaurant, ordering the daily special — pasta with truffles, price not mentioned by waiter — and being shocked by the dish’s $275 price tag.

Readers wrote in with suggestions, including this one from Franklin Synder, a law professor at Texas Wesleyan:

“You might be interested in letting your readers know that a restaurant meal is a ‘sale of goods’ under Article 2 of the Uniform Commercial Code,” he wrote. “The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue. Thus a customer has no obligation to pay for anything more than the reasonable price of a pasta meal at a trendy restaurant.”

He continued: “In this circumstance, a customer should make a reasonable offer for the value of the meal, then walk out and wait to be sued for breach of contract. Be sure to leave the restaurant full contact information so they can’t claim that you’re trying to steal something.”

I confess I may know one or two people who might actually try this if sufficiently provoked, but I do not think I am part of that tiny minority.

Similarly, there is this piece of advice in today’s Miami Herald about what to do when boarding a cruise, offered by one Gabrielle D’Alemberte, who is identified a senior trial attorney at the Law Offices of Robert L. Parks, P.L., a Coral Gables-based plaintiff’s litigation firm:

For those of us in South Florida who travel outside the United States, it’s important to understand that many other countries in Europe, the Caribbean and Latin America have similar laws that make it difficult to file lawsuits in negligence-related cases. If the unthinkable occurs — a child’s drowning in a hotel pool, a crippling watercraft accident at a Caribbean resort or an outbreak of a dangerous virus on a cruise ship — the choice of forum makes a huge difference in the legal outcome.

Therefore, you have to be sure to read the fine print before signing your passenger ticket for a cruise. If you purchase your ticket through a travel agent, be sure you see the actual documents prior to departure — and send an email to the agent to document that request.

When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.

Likely? Likely? Let me tell you that if I were to persuade my wife to go on a cruise and then attempted to pull this stunt, I would probably be disowned. And if it resulted in our being denied boarding, I don’t even want to think of the consequences. Has Ms. D’Alemberte, or anyone in Parks firm actually tried this stunt? I’m dubious, even if she is Sandy D’Alemberte’s daughter. Admittedly it would be easier to recover from this stunt if you are sailing from a port where you live, since you can turn around and get home easily, but I think it might put a serious damper on your vacation, not to mention your relationship.

I’m not even certain whether the cruise line would be obligated to refund your money in these circumstances. I suppose it depends on at what point you are said to have accepted the language in the ticket – when they send it to you or when you hand it over to board. Is there a contracts lawyer in the house?

More generally, and more importantly, who lives like this? (And why should we have to?) No one I know does this, and I hang around lawyers all the time.

Posted in Law: Everything Else, Law: Practice | 5 Comments

Not the Smartest Thing to Wear to Court


A man accused of drug trafficking showed up for court Friday in Fort Lauderdale sporting a jacket that bore a cartoon-style recipe for cooking crack cocaine.

The man’s white jacket looked like a how-to guide for making crack cocaine, with a series of little pictures of a white substance with a spoon, a carton of baking soda and a little pot over a fire. The end product was a "rock," slang for the drug.

via MiamiHerald.com, Man wears ‘crack jacket’ to court.

My question is whether this sort of thing is common only in Broweird, as we so fondly call it, or is this more common? I sort of fear it might be national.

Posted in Florida, Law: Criminal Law, Law: Practice | Leave a comment

Robin S. Rosenbaum Nominated for District Court

Congratulations to Magistrate Judge Robin S. Rosenbaum (UM ’91) whom President Obama has just nominated for the United States District Court for the Southern District of Florida

From the official White House announcement:

Judge Robin S. Rosenbaum is a United States Magistrate Judge for the Southern District of Florida, a position she has held since 2007. From 1998 until her appointment to the bench, Judge Rosenbaum was an Assistant United States Attorney in the same district, where she served as Chief of the Economic Crimes Section in the Fort Lauderdale office beginning in 2002. Before joining the United States Attorney’s Office, Judge Rosenbaum clerked for Judge Stanley Marcus on the United States Court of Appeals for the Eleventh Circuit in 1998, worked as a litigation associate at Holland & Knight from 1996 to 1997, and served as staff counsel at the Office of the Independent Counsel in Washington, D.C. from 1995 to 1996. She began her legal career as a trial attorney at the Federal Programs Branch of the United States Department of Justice from 1991 to 1995. Judge Rosenbaum received her J.D. magna cum laude in 1991 from the University of Miami School of Law and her B.A. in 1988 from Cornell University.

Judge Rosenbaum is also one of our Adjunct Professors, teaching a course called “Writing Weapons in the Litigator’s Arsenal: Motions to Dismiss Under 12(b)(6).”

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A Motion With Balls

This summary judgment motion must surely be one of the all-time classics.

I wonder if the lawyers told the clients that they had a slam dunk?

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Good Question

Brigid Crawford asks, What Does Marital Status Have to Do with Fitness to Practice Law?.

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Good Advice for Persuasive Writers

I thought there was a lot of merit to most of the ideas in this discussion of persuasive legal writing at SCOTUSblog.

I particularly agree with this part:

What makes persuasive writing so hard?

To succeed, you have to imagine a highly skeptical, highly impatient reader who will never care as much about your case or appeal as you do—and then ask yourself how you can somehow grab that reader’s attention and sustain it page after page.

I just don’t think that most advocates—legal or otherwise—imagine an actual person reading their work, let alone think about how to sway that person to their cause. That may be one of the reasons briefs used to be better when lawyers dictated them.  Dictation is at least one step closer to actual communication.

You also have to channel whatever passion you feel into clarity and creativity, not into the anger and self-righteousness that drive so many motions and briefs.

Finally, the apparatus of brief-writing—the citations, record cites, defined terms, footnotes, and case discussions—can easily mask flaws in the prose and in the logic itself.

In your book, you write that advocates should “show, not tell,” in their facts statement, letting choice details speak for themselves.  Why is it important to let the reader come to her own conclusions about the facts?

The people who read lawyers’ work—judges and other lawyers—are highly educated and often cynical.  If your fact section sounds like argument, they’ll dismiss it as spin.  Fiction readers don’t want to be told that March 1 was a warm day in Washington, DC.  They want to be shown that the plaintiff’s clothing stuck to his skin just seconds after he stepped outside his apartment. Judges are similar. They don’t want to be told in a fact section that the defendant engaged in dilatory tactics throughout discovery. They want to be shown that on four occasions, defendant missed a discovery deadline and then provided incomplete responses requiring weeks of further delay.

Bottom line: We are inclined to believe our own conclusions, but we resist conclusions that someone else is trying to shove down our throat.

Surely that last point applies more generally?

[Title corrected]

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