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27
Jul

2013 Florida Bar Ethics Rules and Discovery Handbook – Download

There are a couple “rule books” ethical lawyers swear to.

The first is the Florida Bar’s Rules of Professional Conduct.  They are located here-

RRTFB Master

If you do civil litigation, which means wind up with cases in (civil not criminal) trial courts, you have to have some order and professionalism amongst lawyers. In 1994, the Trial Lawyers Section of The Florida Bar, the Conference of Circuit Judges, and the Conference of County Court Judges formed a joint committee to provide a forum for the exchange of ideas on how to improve the day-to-day practice of law for trial lawyers and trial judges. At the committee’s first meeting, it was the overwhelming consensus that “discovery abuse” should be the top priority.  They drafted the grandfather of these rules.

2013-discovery-handbook

 

 

17
Jul

Man Robs Bank, Then Waits Patiently for Police to Arrive… But did he Really Break the law?

If you rob a bank on purpose and immediately tun yourself in, what are you guilty of? According to Alabama law, you are guilty of first-degree robbery and first-degree theft. However, Jacksonvile, Florida attorney T.C. Roberts disagrees and believes the charges should be dropped.

After injuring his leg, Alabama resident Rickie Gardner was in fear of losing his job and wanted to avoid living on the streets. To Rickie, the best option for avoiding homelessness was to live in a place with a bed, free rent, free cable, A/C and  three free meals a day. For Rickie that place was jail. He decided that robbing a bank would be the quickest way to get to jail. So Rickie robbed a bank with a note that said, “I have a weapon, give me all of your money.”

“He told the teller to put the money in a bag,” ABC reports, “Then he walked out of the bank with more than $4,000. He got in his car, put the bag on the passenger seat, got out and locked the car. He strolled over to the bench, sat down and waited on police.”
“He was adamant his whole deal was he’d have a place to live and a place to eat.” Police Chief Lyndon McWhorter said Tuesday.

Attorney T.C. Roberts disagrees, “This man may not get his room and board for long as these charges should be dropped.” Roberts says, “As sad as this story may be, this man should not be charged with a crime.  Theft and robbery are specific intent crimes that require the perpetrator to intend to take and carry away the items (or money in this case) with the intent to permanently deprive the owner of the items.   Here, this man intended to take and carry away the cash, however, his actions indicate that he did not intend to permanently deprive the bank of the money.  In fact, he safeguarded the money in his locked car until the police arrived to take him into custody.”

I want to now what you think? Leave your thoughts in the comments below.
17
Jul

Legal Links: Legal, Sports and Weird News

Would Edward Snowden be convicted by an American jury? (ABA)

Tired of your cell phone battery dying? Worry no more – researchers invented a battery that uses urine to charge it (The Independent)

A couple punches a lifeguard in the face because his whistle blowing was “aggravating their hangover.” (CBS Boston)

Awesome Twitter by a guy who ran on the field at last nights All Star Game (Brobible)

Is a law degree worth it? Report finds that law grads will, on average, make $1million more over their lifetime than their bachelor degree peers (ABA)

Johnny Maziel denies rumors of being “hungover” at  QB camp, kicked out. A college kid consuming alcohol is making headlines? (ESPN)

Lakers are eyeing LeBron for 2014. Will he leave? Once a cheater, always a cheater. (ESPN)

*Bonus Video*
Get through your post-lunch, mid week depression by watching this guy breaking up with young women he has never met before is quite entertaining.

16
Jul

C&S Video Viewsday

I could not help but share this video…

New York Mets All-Star pitcher Matt Harvey asks fans about Matt Harvey, hilarity follows.

15
Jul

A Few Points From a Worried Mind About Trayvon Martin and George Zimmerman (and Our Nation)

By John M. Phillips

An original civil rights pioneer, Abraham Lincoln, often said “America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.”

We, as a country, were founded on freedom- freedom to do, say and act how we wish.  It was a system of ideals – a literal Constitution– that stemmed from oppression and longing for expression.  But that very freedom was tucked inside Pandora’s Box.  Because my free expression and your free expression (or desire to avoid my expression) may contrast. Our grandfathers may not have valued each others’ rights, but that doesn’t mean that we have to hold on to that dowry of hate.  We cannot hold on to that.  Pandora’s box of freedom is open and making everyone upset, some people crazy and dividing this nation further.  As KRS-One rapped, “Self destruction, (we)’re headed for self destruction.”

Even though some hold sacred the Constitutional Right to the violent ‘defense of self’ guaranteed by the Second Amendment, other Amendments were drafted to provide rights to women and minorities- to force peace and quality.  It means our forefathers were wrong sometimes, too.  Even Thomas Jefferson thought the Constitution of this nation should be redrafted every generation or so.  Yet, some now use those very Second Amendment guarantees to define freedom in America. Lincoln would undoubtedly define that as- “faltering.”  We cannot impinge or insult one another and use the Second Amendment to bail ourselves out of mere free or misunderstanding.  We cannot be violent mice waiting for our tail to be stepped on to teach the great elephant a lesson.

What if -and this is just a hypothetical- George Zimmerman is as much of a “wanted man” as his own family and legal counsel claim.  And what if -to continue that hypothetical- someone he considers menacing (a black child with candy, soft drink and a possible bad attitude, perhaps) comes at him in his car or in a store- fist in the air.  Can he shoot and claim he was standing his ground or was in defense of self?  And do it again?  And do it again?  Where is the line of defense of self and reason?  Ladies and gentlemen, welcome to the world where the Stand Your Ground killer is not only legal, but he (or she) is festering among us.  ‘Dexter’ could run four more seasons if the writers dare approach the laws of lethal force and Stand Your Ground in Florida.

I respectfully ask -so what- that you agree Michael Dunn was wrong to kill Jordan Davis.  It won’t bring Jordan back– a college bound kid with a more potential than Dunn ever had.  It is time to stop the faltering.  Or it is time to give up on some freedoms.  Or just to find some common thread of kindness.  We are headed towards self destruction.  I don’t need you to agree, I need you to act.

As for Zimmerman, the jury has spoken.  Yet, the jury had a -still- unanswered question before it spoke- a question I still ask -why didn’t anyone explain manslaughter?  When you drive recklessly and kill someone, it is arguably manslaughter.  When you act carelessly with a firearm, it is arguably manslaughter.  When you kill someone with the intent to simply pull the trigger, it -legally- is manslaughter.  And it was never argued.  And I don’t believe it was self defense for any of about 50 reasons located here.  The Prosecutors’ silence to omit manslaughter is only made louder by their desire to go on every talk show and justify their failures.

My only request, you have trial in less than two and a half months of a murderer who never had a hair harmed, ever called the police, who just went to his hotel and ate pizza after shooting ten times in a car, killing Jordan Davis- Because Stand Your Ground told him he could.  And this nation falters under bad attitudes and worse laws.  Get to work, please.  Justice depends on it.

11
Jul

Mug Shot of the Day

You will never guess what this guy went to jail for. Go on,  take a good look, try to guess what he did. Did you guess that this man was caught having sex with an inflatable pool raft? Well, that is exactly what he did. Shocker, this is the second time he has been arrested for having sex with an inflatable raft. Shocker number 2, he had sex with the same raft in both instances – seriously. Read more here.

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11
Jul

Legal Links: Legal, Sports and Weird News

Freedom of Speech? No thanks: 7 people who have been arrested because of something they wrote on Facebook (Business Insider)

If the SCOTUS/Anthony Kennedy do not intervene, California will release 10,000 prison inmates (Business Insider)

Lawyer abandons his $200k Ferrari to get to court on time (Above the Law)

Attorney John M. Phillips gives his case for a conviction of manslaughter of George Zimmerman (Know The Lawyer)

Death Valley is so hot you can fry an egg- literally…And it is becoming a problem [Video] (Yahoo! News)

Here is one of the better summaries of the Aaron Hernandez situation (US News)

A second Denver Broncos executive is facing DUI charges (CBS Sports)

A woman was caught trying to to hire an undercover cop to kill her husband, because “divorce” and “breaking his heart” were not options (YouTube)

Boston Marathon bomber Dzhokhar Tsarnaev is due in court today, makes first public appearance (Chicago Tribune)

World’s largest debt collection agency agrees to pay record settlement of $3.2 million for harassing individuals with phone calls (ABA Journal)

9
Jul

I Think Florida Just Banned Your Phone.

This past march, a ring of internet cafes operated by Allied Veterans fo the World  was shut down after a federal investigation found that the “sweepstakes” cafes were illegally (racketeering and money laundering) bringing in over $300 million. Action News Jax reported, “Investigators claimed Allied Veterans raked in hundreds of millions of dollars from a fraud ring that used Internet Cafes as a front throughout Florida.” In the end 57 people were arrested.

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In response to the illegal gambling ring bust, Florida Governor Rick Scott signed off on a bill to ban all internet cafes in Florida that offer games of chance. But it appears that Governor Rick Scott treated the bill like the “agree to terms and conditions” button you click when you buy something on itunes. You just kind of want your song and you just start clicking, “agree” without reading any of the actual terms, conditions or writing. Well Governor Scott must have just started signing everything because he just kind of wanted to ban internet cafes. Why do I think this? Because the the bill banning most internet cafes defines illegal slot machines as any “system or network of devices” that may be used in a game of chance.* Your computer and smart phone most likely have internet access. That would classify them as devices on a system or network. Additionally, your computer and phone probably have games like solitaire, Candy Crush, or Bejewelled which would probably all be considered games of chance (I would consider Angry Birds a game of skill, games of skill are legal in Florida*). In effect your phone and computer are both devices on a system or network of devices that may be used in a game of chance.

*So what is a game of chance? As explained in our previous post, The legality of Online Gambling on Fantasy Sports: What’s the Line?, “A game of skill requires the player to have one or more of the following: A knowledge of the game strong enough to give the player an edge, a highly developed strategy or tactic, superior physichal abilities and the ability to use one’s knowledge effectively and readily in execution or performance. Games of chance on the other hand require much more luck than skill”

9
Jul

George Zimmerman – The Case for Manslaughter (Because It’s About My Child, Too)

atticusGeorge Zimmerman – The Case for Manslaughter

(Because It’s About My Child, Too)

by John M. Phillips

I keep asking myself- have we opened Pandora’s Box so wide that what George Zimmerman did is ACTUALLY legal and reasonable and entirely free from punishment? Early on, I thought it might be.  Before I saw a deceased Jordan Davis and consoled his tearful parents, before Newtown, before spending months really looking at this country, I thought George Zimmerman was just “looking out for his own neighborhood” and might have had to shoot to protect his own life.  And then I looked at life around me.  And then I looked at all of the unreasonable and avoidable actions and inactions that caused him to take Trayvon’s life.

I start with a little about me and my family and what I learned about fear and prejudice in America.  We were burglarized last August.  Seeing my crying wife hold my crying child while police invaded our invaded house, made me wonder- do we all need to arm up to prevent the bad from taking over.  With this thought and $50, I wound up with about 100 others in a Concealed Weapon Permit class, driven there by fear.  This only made my fear worse.  That was the its design- profit off of fear.  Fear sells guns and breeds contempt and power.

The class was put on by a gun store with a cheesy name and the two men who ran the class were like circus barkers:

FoCWPBadger just $162 and 4 hours, you, too, can be master of the universe.  We even sell a book written by the top gun lawyer in the country, which you must buy.  It tells you how to ‘get away’ with self defense.  Live in the grey area of the gun laws.  It tells you more than just, ‘don’t shoot them in the back,’ but what Stand Your Ground really means and how it protects your rights as an American citizen.

The two gun store employees proceeded to tell us more about boycotting certain specific businesses who did not allow guns on the premises than the laws we needed to know.  Over the four hour presentation, they each pulled out six or seven guns from their various hiding spots, taking a few moments to give the sales pitch on each. I was so entranced, I actually bought one of the guns they pitched- the Bodyguard. They did well that day.  They sold- America.

And, as I went alone, I remember just listening to the conversations around me.  It was a few weeks before the 2012 Presidential election and most were there in fear of the re-election of “the black President.”  Others had bought the NRA’s propaganda that the FBI was coming door-to-door to take guns or that permits would be more tightly regulated.  Some spoke against the “thug” in Sanford who had been shot and speculated on who he was “staking out.” The rise in crime, the fear of minority power and other conspiracy theories drove quite a few people there to join the 1 million Concealed Weapon Permit holders in the State of Florida.  Some had been victims.  Some just wanted to feel less fear. All craved the lustful taste of power over fear a gun was promised to provide.

I left, hanging my head in shame.  Who had I become?  Had I let fear overcome me? Having grown up in the great State of Alabama, I knew racists.  But they were only racists when they were around those they trusted.  Now, racism is openly justified by crime reports, broken politics and black teenagers in the wrong place at the wrong time. Holy shit.

And then, weeks later, the God above put me on the couch of Ron Davis. His son, Jordan Davis was just shot and killed by a man with a gun in his glove box.  Michael Dunn’s infamous last words were, “you aren’t going to talk to me like that.”  People say it was about loud music, but it was about where we are as a society.  It was about hate and intolerance, not race as I said in one of the first national interviews I did on the matter. I sat there with tears pouring down my and my associate’s faces- a broken man.  Ron and Lucia had media trucks following them trying to scoop one another.  All three local stations knocked on the door while I was there.  Days earlier, he was a happy father hearing his son lead the Thanksgiving prayer for the first time, and now he was a broken man because of another broken man- Michael Dunn and his legal gun and the empowerment and control it brought him.  He claims self defense and Stand Your Ground, as well.

We will deal with that matter in due course, but it changed me.  It changed the way I view life and tolerance, love and passion.  I grew very angry with lawyers, victims advocates and others who were using these victims or were in it for the profit.  I grew impatient with the close minded.  I walked as close as I could in the shoes of someone who had lost a child to gun violence.  I wound up wanting to find solutions more and more.  I felt (and feel) I can stop a few bullets. Trayvon can stop more.  Jordan can stop more.  The butterfly effect of all of our efforts can stop even more.  Or maybe heal some hearts.  Or something.  We have to, because the next bullet could be flying towards any of us.  And instead of Michael Dunn’s death sentence of “you aren’t going to talk to me like that,” George Zimmerman’s was basically, “you aren’t going to walk in my neighborhood like that.”  What sentence will do you in.

My dad always said, “don’t start no shit, and there won’t be none (sic).”  Let’s look at that-

So, why do we need George Zimmerman to be convicted and why, as a lawyer, do I feel he should be convicted?

On February 26, 2012, Zimmerman did one right thing- he called police. That was the LAST thing he did correct, reasonably and with any intelligence.  If he stopped there, Trayvon Martin would be alive and George Zimmerman would be free of the justice system.  But he compounded neglect of omission and commission thereafter- manslaughter. Read more »

8
Jul

George Zimmerman – 6 Important Missing Questions During Voice Analysis Testimony

George Zimmerman – 6 Important Missing Questions During Voice Analysis Testimony

I am a trial lawyer.  I tell clients, forget what you think about trial lawyers (please).  It boils down -if done correctly- to the trial lawyer being the producer and director of an elaborate play about a crucial chapter in their life.  It is written by the client’s own life- their doctors, witnesses, experts and a host of others, but performed live without scripts (generally). And the trial lawyer is the quarterback, the conductor and the storyteller.

As such, like a quarterback sitting at home judging another quarterback’s play in the field, it is a bit unfair to critique another lawyer’s strategy while the “game” is ongoing. And, I must note that it is not a game and there is no score kept- just the end.  But there have been so many questions in my mind where I ask- did the State Attorneys’ Office for the 4th Judicial Circuit and State of Florida produce and direct this story of the death of Trayvon Martin with proper thought and execution?

To me, the whole case boils down -in large fashion- to the identity of the voices screaming and yelling that night.  Emphasizing that point, George Zimmerman started his case-in-chief on defense with that issue, countering Trayvon’s family’s identity and ownership of that crucial voice heard here- zimmerman.

And even though Zimmerman was TOLD it was his own voice by the officer (who was trying to impeach him on the point Zimmerman claimed he was being smothered at the same time he was yelling), Zimmerman said, it didn’t even sound like him.  So how are we to believe his uncle and mother, who testified without such hesitation?  How could that not be brought before the jury?

Jurors are allowed to tie loose strands together and are encouraged to bring past experience and common sense into the courtroom, but with about six missing questions, the State of Florida dropped the ball on a key issue.  And, realize, these questions could have been asked with leading statements, making the points therein far more important and direct that what I ask here.

And like the quarterback in his recliner, here I go-

6.

Question: “When was the last time you heard your son (or nephew) scream over the phone?”

While it was a question that should have been asked to all parties here on cross examination, it never was.  It is the key issue.  It is the reason why experts could not identify the voice- not enough of a sample or reliability with all of the factors involved, particularly phone quality from 100-plus feet away.zimmermanfiancee4

And no one precisely asked if the witness had heard Trayvon or Zimmerman yelling in the phone ever before this incident? Likely, the answer would have been, “never.” But, it also could have opened an interesting door.  What if Zimmerman or Trayvon had a habit of flying off the handle, what if Zimmerman or Trayvon a habit of wailing, what if there was something in the past (like the purported incident where Zimmerman turned off his mother’s electricity or was verbally abusive, see statement to the right) where this made the witness truly think or debate discussion of like incidents.

Or heard his scream or talk while being muffled?

And once the State knew it was in the clear on these questions, as the Defense really didn’t flush it out, why not let it rip?

5.

Question: “When was the last time you lived with your son (or nephew)?”

The answer is one sided.  The voice expert testified precisely to the unique familiarity of immediate family members to recognize the voice of those really close to them. George Zimmerman had moved on, gotten married, become educated and, arguably, was a very different and better educated man when he left home 5, 6 or 8 years before.  This points could have been spelled out quickly.

His voice or his way of speaking, maybe even his language used around the house to his mother, may have been different.  MORE IMPORTANTLY, the proper leading question would point our that- while Trayvon continued to be a ward of his parents, living at home the entire time, their familiarity lapsed.  Simply having the witness point out he or she had never heard him yell “help” or scream only emphasizes the possibility it was him and is almost flattering, as it shows (indirectly) he was not “crying wolf,” a characterization the State contends.  It’s lazy.

4.

Question: “Does the last sample or two sound like “help”?”

First, George denied the screams sounded like him at first- huge point.  Then, on his TV tour, he was emphatic it was him- an even larger point.  He formulated his story.  The key component of the voice at the very end doesn’t sound like “help” at all.  It is more of a wailing.  It seems more like primal screams FOR help, but does not sound like the word “help.” Yet, Zimmerman has said repeatedly, he screamed “help.”  In the re-creation, he used the word “help.” Listen here-  VoiceExemplars_03222012_643pm. Read more »

8
Jul

Legal Links: Legal, Sports and Weird News.

Lawsuit claims that flashing headlights to warn of police officers is protected speech (ABA Journal)

Saying the wrong things on Twitter can get you jail time, First Last Amendment (ABA Journal)

Here are a few web gems to start your day off right (ESPN)

Work satisfaction is much more important than money and prestige to lawyer’s job satisfaction (ABA Journal)

“Oh, materialism.” Airplane crash survivors escape with their luggage and children… In that order (Forbes)

Do you have $540 mill? Worlds largest personal yacht build complete (Daily Mail)

Brazilian soccer player gets stabbed by referee, fans stone referee to death, decapitate him (Huffington Post)

7
Jul

George Zimmerman’s Ex-Fiance’s Full Statement to Police

George Zimmerman’s Ex-Fiance’s Full Statement to Police

Biased? Truthful?

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5
Jul

TWO YEAR ANNIVERSARY of LOJMP – You Can’t Live Life in One Day

TWO YEAR ANNIVERSARY of LOJMP –

You Can’t Live Life in One Day

This expression has incredible significance to me.  Today is the two year anniversary of my firm, marks just over 17 months being a dad and an incredible month and a half as a husband.  You can’t force a happy life; you have to cultivate it.  You have to be passionate about it.  You have to take the tears and fears and make the most out of them, focusing on the other side of the tunnel.  Tomorrow has the ability to be the difference, but only because yesterday was not wasted.

It is hard to take my last 2 years and not find a lifetime in it.  I have seem my mother grow ill and lost her, found and married a best friend, gained a son whose mere promise changed me at the primal core, been severed from a job only to start a firm that I would put up there with the best in the country.  I have been touched my clients, discovered a passion for helping people that erupted like the most powerful volcano, defrauded by someone I trusted and lost a couple friends because -well- they weren’t really.  And seen dumbfounding growth of my practice. Read more »