"Is it legal to fire a woman because her breasts are too large?"

Via Ann Althouse, that is the legal question presented in the case of Alice Alyse v. the producers (and various other people associated with) Movin' Out (the Billy Joel musical), filed here in Miami. Alice is represented by Larry Klayman. Here's the Washington Post article. Here's the lawsuit. And here is her website (in case you want to judge for yourself).

Bill Clinton & Bill Nelson

I went to the Bill Clinton/Bill Nelson event tonight. Speakers included: Clinton, Nelson, Nelson's wife Grace, his son Billy, Jim Davis, Rod Smith, Alcee Hastings, and Debbie Wasserman-Schultz. Other than Clinton who everyone was there for, I thought Alcee stole the show and the night. All of the speakers joked that Clinton was late, as usual. But he, as always, delivered a magnetic speech -- there is a rock-star quality to the former President.

Interestingly, there were a number of prosecutors in attendance...

Rock Paper Scissors

Since I highlighted the rock paper scissors order from Judge Presnell a couple days ago, the links to this site and the site meter have been exploding (watch out Rumpole). Fun stuff. Even the mainstream media has picked it up, with articles in just about every major newspaper and big-news website (like CNN). Here's an article from the NY Times, which I liked...

June 9, 2006
Lawyers Won't End Squabble, So Judge Turns to Child's Play
By ADAM LIPTAK
Fed up with the inability of two lawyers to agree on a trivial issue in an insurance lawsuit, a federal judge in Florida this week ordered them to "convene at a neutral site" and "engage in one (1) game of 'rock, paper, scissors' " to settle the matter.

Childish lawyers are commonplace, but the use of children's games to resolve litigation disputes is apparently a new development. The judge, Gregory A. Presnell of Federal District Court in Orlando, wrote that his innovation was "a new form of alternative dispute resolution."

The proximate cause of Judge Presnell's ruling, issued Tuesday, was a motion saying the two lawyers in the case could not agree about where to conduct the deposition of a witness. The choices were the building where they both work, four floors apart, or a court reporter's office down the street.

Judge Presnell's order indicated that deciding such things was not part of the job of a federal judge. Still, wary that the lawyers would start a new battle over where to conduct the rock-paper-scissors showdown, Judge Presnell gave them a default site: the front steps of the federal courthouse in Tampa.

That will not be necessary, said David J. Pettinato, a lawyer for the plaintiff. He and his adversary have agreed to meet on June 30, Mr. Pettinato said, at "an undisclosed location."
Mr. Pettinato added that he had been wasting no time since the order came down and had been training with his daughters, who are 5 and 9. They have advised him to open with rock.

Mr. Pettinato said he was inclined to agree "because my case is solid as a rock."
That would be an unusual opening for a lawyer, said Matti Leshem, the co-commissioner of the USA Rock Paper Scissors League, which he described as the governing body of the sport, whose headquarters are in Los Angeles.

"I guarantee you right now," Mr. Leshem said, "that both lawyers will open with paper. Lawyers open with paper 67 percent of the time, because they deal with so much paper."
Mr. Leshem offered to officiate the match. "What I don't want," he said, "is some rogue element of rock-paper-scissors coming down from the bench. When the law takes rock-paper-scissors into its own hands, mayhem can occur."

The second lawyer in the case, D. Lee Craig, declined through a spokesman to preview his strategy. Judging from the spokesman's tone, Mr. Craig did not find the matter especially amusing.

That would be in keeping with the compliment Mr. Craig paid to Mr. Pettinato in a letter last week. "Apparently you think it is in your client's interest to create as much misery and bad feeling as you are able," Mr. Craig wrote. "In those endeavors, you are most able."

A scotch-and-champagne celebration

I had previously posted about Judge Altonga's JNOV in the $78 million verdict against Arriva Pharmeceuticals. Here's Julie Kay's take on the knock the wind out of (or into, depending on what side you're on) your sails ruling. There is a lot of gossipy stuff in here, including how the lawyer who initially lost the case, Jonathan Goodman of Akerman Senterfitt, was dubbed the $78 million man at his firm; the fact that he found out about the verdict while on vacation skiing; and that he sent around an email that was forwarded to everyone in town after Altonaga's ruling vindicating him.

That e-mail soon was copied to just about every lawyer in town. The subject line read: "Fascinating and significant $78 million post-trial victory — If I say so myself (and I do)." Goodman acknowledged the lengthy e-mail was “a blatant example of self-promotion, self-aggrandizement and egomania,” fueled by a scotch-and-champagne celebration. He wrote that “we’re thrilled with the post-verdict result, which is very, very cool.” Not to rival attorney Jim McDonald, who said his team is analyzing the e-mail. “Looks like he had a few drinks when he wrote that,” McDonald said in an interview. “It ain’t over til it’s over, Jonathan. See you at the 11th.”

Round 1 to Jim McDonald. Round 2 to Jon Goodman. Round 3... Any bets?

Middle District news

Judge Gregory Presnell from the Middle District of Florida is a favorite of the federal court junkie... This latest order shows why:

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

Case No. 6:05-cv-1430-Orl-31JGG

AVISTA MANAGEMENT, INC.,
d/b/a Avista Plex, Inc.,

Plaintiff,

-vs-

WAUSAU UNDERWRITERS INSURANCE
COMPANY,
Defendant.
______________________________________

ORDER

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule
30(b)(6) deposition (Doc. 105). Upon consideration of the Motion – the latest in a series of
Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

GREGORY A. PRESNELL

United States District Judge

LOVE IT! Okay, so there's going to be a high stakes games of rock-paper-scissors... What is your strategy? Do you start with the safe play of rock or do you get coy and go paper? But then again, maybe you should start with scissors... Ah, the complexity and strategy of a good r-p-s game! It really should have been best of 5 or at least 3 so that the lawyers could get a feel for each other, don't you think?

Jack Bauer or real life?

When I watch 24 every week, I never thought that the torture scenarios that confront Jack Bauer on a weekly basis come up all that often in real life. Apparently, I was wrong. Here's an AP article about Jose Padilla's latest motion to exclude evidence on the basis that it were acquired by use of torture:

Jose Padilla's lawyers want a federal judge to throw out key evidence because the alleged al-Qaida operative's arrest was based on statements from one source who claims he was tortured and another who was heavily medicated and possibly unreliable. The evidence should not be allowed at Padilla's trial set for this fall based on an FBI affidavit "that distorted the facts in an apparent disregard for the truth," Padilla attorneys [Andrew Patel, Michael Caruso, Tony Natale, and Orlando do Campo] said in a court filing.

Kinda scary, no? And I don't think I'm against torture in all cases. I take the view of one of my law school professors, Alan Dershowitz, that we should debate the issue about when torture can be used and who should be accountable when it is. Certainly, a judge should have to approve it where practicable; the standard for employing it would have to be very high; whatever evidence is obtained by use of the torture should not be admissible in court; and it should only be used in life or death situations where absent torture people would die. Even in these *very* limited circumstances, I'm still extremely queasy about it, but it strikes me that there may be a case of mass terrorism where a large number of people would die absent torturing one of the involved terrorists. Suppose a suspect knew the location of a bomb that was to go off in a matter of hours that would kill thousands of people. If that person absolutely refused to disclose where that bomb was, would anyone chose letting the bomb go off over trying to extract the information from the captured terrorist? But Padilla's case is the other end of the spectrum. With Padilla, the feds were trying to build a case against someone who was already in custody. I can't imagine torture in those circumstances could be justified, and certainly such evidence -- if truly acquired by use of torture -- should not be admissible in a court of law.

Pledge Requirement Unconstitutional

Judge Kenneth Ryskamp found a state law requiring students to recite the pledge unconstitutional. Here's the Palm Beach Post article by Rani Gupta:

A federal judge has declared a state law requiring students to stand for the Pledge of Allegiance unconstitutional, stating it violated the rights of a Palm Beach County student who sued the state last year. U.S. District Judge Kenneth L. Ryskamp also ruled unconstitutional the provision of the 1942 Florida law requiring students to obtain permission from their parents to be excused from reciting the pledge. The American Civil Liberties Union cheered Ryskamp's decision as a landmark ruling that upholds all Florida students' free speech rights. "The highest tradition of being an American is freedom of thought and freedom of speech," ACLU attorney James Green said Thursday. "Freedom of speech includes the right to speak and the right not to speak, and not to be forced to speak in a certain way." But conservative legislators decried the decision, which they said was an assault by "liberal" and "activist" judges on the beliefs of the majority. State Sen. Mike Fasano, R-New Port Richey, called the decision "ludicrous." Fasano this year spearheaded an unsuccessful attempt to ask Florida voters to decide whether the state constitution should require students to stand and recite the pledge. Students would have needed a parent's permission to be excused. "What a federal judge has done is taken away patriotism from our schools," Fasano said.

Ryskamp was appointed by President Reagan.

Sentencing seminar

The Fifteenth Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, begins today. All the particulars of this exciting event are set out in this event brochure. I would have gone, but instead I'm visiting the in-laws in NJ...