3d DCA Watch — “Legal Panache” Edition!

Is the right to a jury trial a question of great public importance?

That’s the issue certified by the Resplendently Resplendent Ones today in Weisenberg v. Costa, which involved a forum selection clause that specifies admiralty jurisdiction but not that the legal consequence of being in admiralty is no jury trial.

Judge Cope’s opinion certifies to the Supremes this question:

IS A FORUM SELECTION CLAUSE ENFORCEABLE IN CIRCUMSTANCES WHERE ITS EFFECT IS THAT PASSENGERS WAIVE THE RIGHT TO A JURY TRIAL BUT THE CLAUSE DOES NOT EXPRESSLY SO STATE?

Seems like it might be worth the Supreme’s time, especially with all the cruise cases here in South Florida.

Plus it already divided the 3d, which dealt with this issue last year in Leslie v. Carnival Corp., 22 So. 3d 567 (Fla. 3d DCA 2009):

Compare id. at 574 (Shepherd, Gersten, Wells, Suarez, and Lagoa, JJ., concurring in denial of rehearing en banc) (“[U]nder federal maritime law, the passengers in these cases received the notice to which they were legally entitled. . . . There is no requirement under general maritime law that ticket recipients be advised of any unstated ramification of those limitations.”), with id. at 585 (Cortiñas, Ramirez, Cope, Rothenberg, and Salter, JJ., dissenting from denial of rehearing en banc) (“[W]e would grant the motion for rehearing en banc and find the federal court portion of the Forum Clause at issue here is unenforceable as it operates to deprive appellants of their constitutional right to a jury trial without notice and without consent.”).

Not so, says Judge Shepherd.To be honest, this case is barely worth the electronic data it’s printed on, let alone an issue to bother the mighty Supremes with, busy as they are with rule changes, disbarments and oh, that’s right — executions:

The case before us is a garden variety personal injury case with a contractual twist. As a practical matter, the clause in question affects a narrow class of Costa Crociere cruise ship customers—those with a dispute arising out of their cruise experience.

He also says something about the “ancient concepts of freedom of contract,” “deduces” the true non-record selfish motivation of the appellant (juries are perceived to be more favorable to plaintiffs than federal judges) and then goes for the jugular:

This may be a case of some legal panache. However, in my opinion, it is not a case of great public importance. The former, of course, is not a basis for certification.

Ouch.

Take that, Judge Cope — panache!

First of all, the word is French.(I think that speaks for itself).

Further, according to Wiktionary, Judge Shepherd thinks the case either (1) resembles an ornamental plume on a helmet, or (2) exhibits flamboyant, energetic style or action; dash; verve.

I would agree with him that the former, of course, is not a basis for certification.Not sure about the latter, though I have a question — how can a case be “garden variety” yet also show some “legal panache”?

Guess we’ll soon find out.