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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
I agree with the majority’s reversal of this restitution order. Having said that, I write separately to note this entire appeal is about $79.00. This writer’s cynicism, bolstered by 23 years of experience in dealing with the juvenile justice [sic] system, emboldens me to suggest it is $79.00 which under most circumstances would not be paid by J.R. even had we affirmed.By the way, that "[sic]" is Judge Polen's, not mine.
My point is the alarmingly disproportionate value of the legal system’s resources – notably resources of the citizens of Florida – 4 judges, 2 public defenders, 1 assistant state attorney, 1 assistant attorney general, numerous clerks and other court personnel, plus the costs of transcripts, files, etc. – which have been expended to secure this reversal. All this leads me to the unsettling, and not too rhetorical question: Is it worth it? Put another way, even knowing that J.R. can bring such an appeal, and he is technically correct, in this age of shrinking budget dollars and overworked lawyers and judges, is it entirely appropriate to bring such an issue to an appellate court? For $79.00?
May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?You can read the First District's rather terse decision here.
Terri Schiavo suffered severe brain damage in 1990 when her heart stopped. Some medical experts have testified she is in a persistent vegetative state with no hope of recovery; others disagree. Her parents have argued their daughter could improve with therapy.Reporting like this has no doubt contributed to many people misunderstanding that the issue of whether Terri has any likelihood of regaining some cognitive functioning has been litigated -- Michael Schiavo, the Schindlers, and others, including experts for both sides and a court-appointed independent medical expert, have already fought this battle in the courts at a trial and on appeal. The trial judge heard all of the evidence from all sides and concluded that Terri is in a persistent vegetative state and that there is no treatment option that could significantly improve her quality of life. Yet this AP story describes the situation as if two groups simply disagree on an issue that no court has resolved, as if justice and a day in court were still a day away. That's just not true. Check the Terri Schiavo Information Page if you'd like more details.
By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen long enough to produce catastrophic brain damage.The column also explains that a jury assessed the Schiavos' damages at over $6.8 million but found Terri to be at fault, too, leaving the Schiavos with about a $2 million award. The column does not mention but other reports indicate that the case later settled for half that amount.
The trial of the medical malpractice case established that the health care providers who treated Terri should have figured out that she had an eating disorder and referred her to the appropriate specialists for treatment.
Noncriminal violations solely for excessive speed less than 70 miles per hour on highways which are outside business and residential districts and which have at least four lanes divided by a median strip at least 20 feet wide and on highways which comprise a part of the national system of interstate and defense highways shall not be considered by insurance companies in rate increases for individuals or surcharges for insurance premiums.Of course, in 1976, we didn't have 70 mile per hour speed limits on any of our roads, so this statute was probably a bit more forgiving then than it is today.
IS IT APPROPRIATE TO SET-OFF AGAINST THE DAMAGES PORTION OF AN AWARD AGAINST ONE TORTFEASOR IN A TORT ACTION THE AMOUNT RECOVERED FROM SETTLEMENT FROM ANOTHER FOR THE SAME INCIDENT CAUSING THE INJURY WHERE THE SETTLING ALLEGED TORTFEASOR WAS NOT INCLUDED ON THE VERDICT FORM?A similar question was previously certified by the Fourth District, in a case that the Supreme Court has accepted for review, but I include this question here because the prior case predated the start of this blog.
At the October 20, 2003, hearing, The Center argued that withholding nutrition and hydration from the ward may constitute "abuse and neglect." However, The Center admitted that had the ward left explicit written directions under Chapter 765 to terminate her nutrition and hydration, The Center would not have filed this action. In other words, this action represents The Center's disagreement with the fact finding in Florida's courts that the ward actually consented to the present course.That pretty much sums up the controversy in this case.
authorizes the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient under certain circumstances; provides for expiration of the stay; authorizes the Governor to lift the stay under certain circumstances; provides that a person is not civilly liable and is not subject to regulatory or disciplinary sanctions for taking action in compliance with any such stay.According to the Florida Senate's web site, a Senate committee will be taking up the bill at 8 a.m. If the Senate passes the bill today, all indications are the Governor will immediately sign it and invoke the stay it permits.
Because the foundation of the dissenting position is laid upon reliance and fairness interests, it must stand or fall with the presumption that everyone, including Mr. Glazner, knows the law. That is a great and hoary presumption underlying much of our law. The problem is not with the presumption but with the dissenters' unwillingness to embrace it fully, instead of giving it only a little squeeze. They would have us presume that at the time Mr. Glazner decided to electronically invade his wife's privacy, he knew the law insofar as it includes our Simpson decision but he did not know the more fundamental law that any of our decisions, including Simpson, are subject to being overruled at any time by the Supreme Court or by this Court sitting en banc.Wow.
The dissenters would have us presume that the mythical lawyer Mr. Glazner did not actually visit for advice, but could have, would have advised him to wiretap without worry. That advice apparently would have been based on the belief that although Simpson was a badly reasoned decision rejected by virtually every other circuit to consider it, nonetheless Simpson was unshakable law in this circuit that could never be changed; and even if it were changed some day, the new rule could never be applied retroactively to Mr. Glazner's intended misconduct even though the law strongly favors making new rules of decisional law retroactively applicable.
* * *
Whatever one may think of the quality of the Bar in Alabama, if we are going to indulge presumptions about everyone knowing the law and getting legal advice, we should presume accurate knowledge of the law and competent legal advice. If Mr. Glazner is presumed to have known the law -- and the dissenting position teeters atop that presumption -- he must be presumed to have known that the Simpson decision was not immutable, and that not only could it be changed but also that the change could be applied retroactively. And he must be presumed to have known that the conduct he was engaging in is a crime in Alabama; no change in the law is needed for that. With accurate and complete understanding of the law presumed, as it must be, any reliance interest Mr. Glazner may claim is too unreasonable to figure into the decisional calculus of this case. We should not pause to weep for one who thought that he was simply committing a crime and potentially subjecting himself to civil liability in state court, only to learn later that his conduct had also given rise to civil liability in federal court. To me, that result does not seem "terribly unfair," as the Chief Judge characterizes it in his dissenting opinion.
Footnote 13 of that opinion illustrates the strange nature of the half-way presumption world into which the dissenters would take us. In that footnote we are told that some people may have chosen to live in the Eleventh Circuit because the Simpson decision allowed them to covertly wiretap their spouses…
I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:
Jim: Honey, I've been thinking, we ought to move to Alabama.Only in a world where conversations like that take place does concern about reliance on the Simpson decision by James Glazner and other wiretapping spouses make sense.
Liz: But Sweetheart, I thought you liked living in Colorado.
Jim: I do, Sugar, but there's a problem.
Liz: What's troubling you, Sweetie?
Jim: Well, Punkin', Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court. But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about your having a civil claim against me in federal court.
Liz: But Honeybun, doesn't Alabama's criminal eavesdropping statute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?
Jim: It does, Snookums, but all I'm worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.
Liz: You'll look so good in jailhouse stripes, my Love. When do we move?
The district court ought not allow the plaintiffs any compensation for time their counsel spent in connection with amicus briefs supporting their position. The plaintiffs' fee application includes a request for reimbursement for work that lead counsel for the plaintiffs, Ayesha N. Khan, did in relation to a number of amicus briefs filed in support of plaintiffs' position. Her time records indicate that she spent that time enlisting various organizations to appear as amici; suggesting potential signatories for the briefs; working on, supervising, and reviewing the amicus briefs; and seeing that they were mailed on time.(footnote omitted).
It comes as no surprise to us that attorneys for parties solicit amicus briefs in support of their position, nor are we shocked that counsel for a party would have a hand in writing an amicus brief. In fact, we suspect that amicus briefs are often used as a means of evading the page limitations on a party's briefs. See Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (Posner, J., in chambers) ("[A]micus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs."). Even where such efforts are successful, however, they should not be underwritten by the other party. An organization or group that files an amicus brief on the winning side is not entitled to attorney's fees and expenses as a prevailing party, because it is not a party. We will not allow that result to be changed by the simple expedient of having counsel for a party do some or all of the amicus work. To pay a party for such work would encourage the practice, which we are loathe to do. The district court should not award plaintiffs any attorney's fees or expenses for work done in connection with supporting amicus briefs. (A reasonable amount of time spent reading and responding to opposing amicus briefs is, of course, compensable.)
The government cannot "leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints."If I read that right, the Alligator is saying that those who have "good cause" to access autopsy photographs have a favored point of view, whereas those who lack good cause have a disfavored point of view, and that the state is not supposed to be in the business of awarding "subsidies," like access to autopsy photographs, based on viewpoint.
[Florida's new autopsy photographs law] explicitly allowed trial judges to do just that when it simultaneously exempted autopsy photographs from disclosure under the Public Records Law and allowed access to those who could show "good cause" for allowing access.
"Cyberstalk" means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.You've been warned.
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