CITY COMMISSION SPECIAL MEETING
CITY MANAGER'S OFFICE
August 28, 2012
5:00 p.m. - 6:47 p.m.
7 North Dixie Highway
Lake Work, Florida
Appearances:
Pam Triolo, Mayor
Scott Maxwell, Vice Mayor
Michael Bornstein, City Manager
Suzanne Mulvehill, Commissioner
Chris McVoy, Commissioner
Andy Amoroso, Commissioner
Glen Torcivia, Esq., Interim City Attorney
Brian Joslyn, Outside Counsel
[FORWARD TO PAGE 75, LINE 5]
MR. TORCIVIA: Everything we are talking about today, if there is this conversation, slash, mediation, and they come back with a number, whether that number is 750, 600 or 2 million, my intention would be to bring it back to you in another one of these sessions and say, This is their bottom line at this point. I mean, their bottom line a year and a half ago was X. Now, today, three months before trial, their bottom line is Y. Do you want to accept whatever Y
happens to be. Hopefully it's less than 750, and I don't -- and Brian is pretty sure it's not going to be 750.
MR. JOSLYN: It's not. I'll buy everybody at this table dinner if he to comes in at a million, okay?
MR. BORNSTEIN: Restaurant of our choosing?
MS. TRIOLO: Vice Mayor?
MR. MAXWELL: I got to ask, if we are going to talk about the 30 percent chance, does the court determine what the award is? Is there a formula based on certain aspects of law or --
MR. JOSLYN: No, a jury would decide.
MR. MAXWELL: So the jury could come back -- they could come back and say, Hey, we had a bad hair day and it's 30 million bucks?
MR. JOSLYN: Could very well, but the judge then -- we have a right to ask the judge to reduce that, and I would think under the facts of the case that we present, that would happen.
MR. MAXWELL: I don't think any reasonable person thinks they are going to --
MR. JOSLYN: No.
MR. MAXWELL: -- but my point is: I'm looking to find out if there's a formula that is used to calculate an award.
MR. TORCIVIA: It is an art, not a science, the way jurors come up with anything.
MR. JOSLYN: Absolutely.
MR. TORCIVIA: You know, I'm on the jury, I don't like him, I'm not going to give him a nickel, but I like him, I'm going to give him a million dollars.
MR. JOSLYN: One other problem that we found was that the verdict form that we were using was unnecessarily complex, and probably led to some confusion and their willingness to just put a number together. So that was one thing that we have completely changed, is the way we want to have the verdict form.
It will be a straight up or down. One side is going to win, or they are going to win a couple million bucks, tops. I can't see -- I have not lived to regret saying these things so far, so I just have to assume probably my luck is going to hold, but I really think you guys have a tremendously strong case. I really do.
If I didn't, you would be hearing something different from me, okay. I would be saying, For God's sake, please, you need to figure out a way to put more money on the table or get bankruptcy counsel. I'm not saying that.
MS. TRIOLO: Commissioner Mulvehill?
MS. MULVEHILL: Two things. One, I know a year ago, when we met before with the depositions, before all this information came in, you mentioned we had a 50/50 chance, so your probability has improved --
MR. JOSLYN: Yes.
MS. MULVEHILL: -- in the sense of our chances of winning have actually improved?
MR. JOSLYN: Yes.
MS. MULVEHILL: This is a whole separate issue, but declaring -- we had declared a state of financial urgency, the City had declared a state of financial urgency and won that against the unions, so I don't know if that would have any --
MR. JOSLYN: You would like to let that slip, wouldn't you?
MS. MULVEHILL: That's why I am telling you.
MR. JOSLYN: Look, everybody in that jury room knows that local governments are under extraordinary pressure, every one of them.
They are all going to know their tax bills, they are all going to know -- I mean, you have to -- I will tell you this: I have tried 20 jury trials, probably 25 cases like this in my career. The juries are smart. You think all you are going to get are migrant workers or something like that. Every jury I have had has had accountants and stockbrokers and business people on it, and they are -- my firm belief is that a jury is way smarter collectively than they are
individually.
When you have a consistent, easy to tell story, I just -- I think they get it. I really do. I have a lot of faith in jurors.
MS. TRIOLO: Commissioner Mulvehill?
MS. MULVEHILL: I have one follow-up, and this is just in the event that it does end up going to trial. One thing that kind of -- when you said -- it just didn't feel right to me when you mentioned that you would go into the interview with the jury and say, Well, you know, Lake Worth's screwed up to kind of get their perception. I would suggest that we didn't do it that way, that -- my suggestion would be we would ask them, What do you think about Lake Worth?
MR. JOSLYN: No, no, no.
MS. MULVEHILL: That's just my personal opinion.
MR. JOSLYN: If you want a show of hands, you do it this way, I'm telling you. What you want is people to hold their hands up. Okay?
And the way you do that -- the way you do that is: How many here think that Lake Worth is -- because you read all the time that they are screwed up, did something wrong here, before you've heard any evidence, how many?
MS. MULVEHILL: Before you heard any evidence.
MR. JOSLYN: How many?
MS. MULVEHILL: I just think you put it in their mind.
MR. JOSLYN: I will tell you what, I had an immigration lawyer I defended one time that had been investigated by the federal government where they wired up his clients -- threatened them with deportation, wired up his clients to go into his office to try to get something on him.
That case was dismissed shortly before a trial that he had been involved in the scheme to get immigrants over here to invest in businesses that weren't worth what they were worth.
This guy was very slick, okay? Handmade shirts, handmade shoes, but he was honest. So what I did was I said -- the very first question I asked was: I represent a Jewish lawyer from Palm Beach. How many of you think he has done something wrong? I got six people to hold up their hands, okay? And it didn't hurt him a bit, but those people didn't sit on the jury.
And once they hold up their hands, you go, okay, now, you understand this doesn't have to do with the power plant, it doesn't have to do with this or that, does that affect your ability to try this case fairly, or you could do it the other way. So as a result of your strong opinions, are you sitting here telling me you can't try this
case fairly, you are so prejudged against them that you can't sit fairly?
I don't like to do it that way, because no one wants to admit that they're prejudiced, okay. You got to do it a different way, and there's a bunch of ways to do it.
So that's why I have these guys, because as a commercial trial lawyer, I don't do jury trials but more than once a year or, so I'm not as good at picking juries as I am at trying the case, so I get the assistance I can.
MS. MULVEHILL: Okay.
MR. JOSLYN: But we will have all of that ready to go by the time this is --
MS. TRIOLO: When do you think we could reconvene for a meeting after?
MR. JOSLYN: Let me call or I will e-mail Glen.
MR. TORCIVIA: What I will do, at your next public meeting, I will announce and request another one, and we will coordinate a date. We can always cancel it, but at least we will have it scheduled.
MR. JOSLYN: Okay.
MR. TORCIVIA: Maybe a month out from now might be a reasonable time, because you have to coordinate --
MR. JOSLYN: One more suggestion I would just make overall, and this has nothing to do with this case. The attorney has used -- on the other side has used the phrase shade session to refer to the
attorney/client session in December that we had. That is incredibly prejudicial, okay?
I would just suggest to you overall, in attorney/client sessions now, just don't ever refer to them as a shade session, okay?
MS. TRIOLO: I kind of agree with that myself.
MR. JOSLYN: It's an attorney/client session, all right? That was one of the things that they really picked up on, the psychologist that were doing the jury simulation, just -- and, you know,
I hadn't thought about it one way or the other, but it's right. It sounds shady. It's the noun version of the adverb.
MS. TRIOLO: Thank you, I appreciate that. Any other questions Commissioner McVoy?
Mr. McVOY: You obviously know more about how to approach these things, but you mentioned that the Greer trial may play a role in this. Could we come in later in the game, quite close to December 17th, and ask him, Do you want to settle?
MR. JOSLYN: Oh, we could -- you could do it up till the day the jury comes back.
MR. TORCIVIA: But at that point, you probably spent probably 100,000 of that 200,000.
MR. JOSLYN: Yeah.
MR. TORCIVIA: Every day we are getting closer, he is preparing. He did a great job preparing the case.
MR. JOSLYN: It's -- I think we do it now and forever hold our peace.
The one thing I will tell you is that since I haven't seen this guy in trial, I'm going to go up and sit in the Greer courtroom for a while and watch him for a couple of days, just to see, because I just want to know what we're really facing.
MS. TRIOLO: I think you should.
MR. JOSLYN: It's important. He could be, you know, a real super star, and, you know, we will have to see.
MS. TRIOLO: I know you all know this, but obviously it's called a shade meeting -- it's no longer called a shade meeting. It's called an attorney/client session for a reason, but none of this information can be shared outside of this meeting, just a reminder to everyone.
MR. JOSLYN: If any of you want to see any of this stuff, I can certainly one on one meet with you and show you anything you would like to see.
If you want further additional information or something you want to discuss, you have a question, feel free to talk with the Manager and get the message to me if you ever have a question or anything like that.
I mean, it hasn't happened so far, but if you have a question or something along the line, please -- or you hear something, you know -- I mean, I get e-mails from -- I'm sorry, I get e-mails occasionally from Mr. and/or Mrs. McNamara and a couple of other people, Hey, we just want you to know this, we want you to know that. So if you have anything you've heard or you wanted me to
know, just let me know. Just as long as we don't do it with more than one of you at a time, it's no problem.
MR. BORNSTEIN: This is the second time I have heard your recounting of the long epic odyssey. Is that memorialized in any factual form that we can --
MR. JOSLYN: No.
MR. BORNSTEIN: Not yet?
MR. JOSLYN: No.
MR. BORNSTEIN: It's quite a lot.
MR. JOSLYN: It is. I can put a timeline --
MR. BORNSTEIN: No, don't, don't spend any time on that. At some point, we'll get this transcript.
MR. TORCIVIA: When the case is finally finished, because the case could be appealed, too, either sides wins or loses, so when it's finally finished, that's when this becomes a public record.
MR. JOSLYN: But the transcript can be prepared now, correct?
MR. TORCIVIA: She can prepare it, but it's not a public record until after --
MR. JOSLYN: I understand, but I mean the Manager --
MR. BORNSTEIN: Well, the question was, would any of you find that kind of handy for referring this in any way --
MR. JOSLYN: You know what? I'm sorry, I have an outline of the case. It isn't as in depth with all of the facts, but that I do for an audit or inquiry response. Let me find it, and I will e-mail it to you.
MR. BORNSTEIN: If you e-mail it, it's still attorney/client?
MR. JOSLYN: I always -- when I communicated with Elaine, I always said, Greater Bay Lake Worth case, ongoing litigation attorney/client communication.
MR. TORCIVIA: I would suggest not e-mailing, only because e-mail is so easily accessed. Put it in an envelope and mail it.
MR. JOSLYN: All right.
And closer to trial when I -- I mean, after -- I'm not ready to do an opening statement outline yet. I've sort of got it in my head, but until I know what the two prime rascals have to say, I mean, there is not really a way to do the -- it's just a mass of facts that we have been living with so for so long, so --
MS. MULVEHILL: Do we want to get a summary, just to be clear -- maybe, Glen, you can --
MR. TORCIVIA: My understanding is that Brian is going to give the other lawyer -- kind of go fishing and see if there is any interest
whatsoever in trying to get it resolved.
If there is any interest, we will reconvene at meditation, and hopefully get it resolved or at least a number to bring back to the commission as a whole at one of these sessions, attorney/client sessions, within the next month.
MS. MULVEHILL: Very good, thank you.
MS. TRIOLO: The meeting formally known as shade is recessed.
THE COURT REPORTER: Are we off the record?
MR. JOSLYN: Yes.
(Thereupon the proceeding was concluded at 6:47 p.m.)
Appearances:
Pam Triolo, Mayor
Scott Maxwell, Vice Mayor
Michael Bornstein, City Manager
Suzanne Mulvehill, Commissioner
Chris McVoy, Commissioner
Andy Amoroso, Commissioner
Glen Torcivia, Esq., Interim City Attorney
Brian Joslyn, Outside Counsel
[FORWARD TO PAGE 75, LINE 5]
MR. TORCIVIA: Everything we are talking about today, if there is this conversation, slash, mediation, and they come back with a number, whether that number is 750, 600 or 2 million, my intention would be to bring it back to you in another one of these sessions and say, This is their bottom line at this point. I mean, their bottom line a year and a half ago was X. Now, today, three months before trial, their bottom line is Y. Do you want to accept whatever Y
happens to be. Hopefully it's less than 750, and I don't -- and Brian is pretty sure it's not going to be 750.
MR. JOSLYN: It's not. I'll buy everybody at this table dinner if he to comes in at a million, okay?
MR. BORNSTEIN: Restaurant of our choosing?
MS. TRIOLO: Vice Mayor?
MR. MAXWELL: I got to ask, if we are going to talk about the 30 percent chance, does the court determine what the award is? Is there a formula based on certain aspects of law or --
MR. JOSLYN: No, a jury would decide.
MR. MAXWELL: So the jury could come back -- they could come back and say, Hey, we had a bad hair day and it's 30 million bucks?
MR. JOSLYN: Could very well, but the judge then -- we have a right to ask the judge to reduce that, and I would think under the facts of the case that we present, that would happen.
MR. MAXWELL: I don't think any reasonable person thinks they are going to --
MR. JOSLYN: No.
MR. MAXWELL: -- but my point is: I'm looking to find out if there's a formula that is used to calculate an award.
MR. TORCIVIA: It is an art, not a science, the way jurors come up with anything.
MR. JOSLYN: Absolutely.
MR. TORCIVIA: You know, I'm on the jury, I don't like him, I'm not going to give him a nickel, but I like him, I'm going to give him a million dollars.
MR. JOSLYN: One other problem that we found was that the verdict form that we were using was unnecessarily complex, and probably led to some confusion and their willingness to just put a number together. So that was one thing that we have completely changed, is the way we want to have the verdict form.
It will be a straight up or down. One side is going to win, or they are going to win a couple million bucks, tops. I can't see -- I have not lived to regret saying these things so far, so I just have to assume probably my luck is going to hold, but I really think you guys have a tremendously strong case. I really do.
If I didn't, you would be hearing something different from me, okay. I would be saying, For God's sake, please, you need to figure out a way to put more money on the table or get bankruptcy counsel. I'm not saying that.
MS. TRIOLO: Commissioner Mulvehill?
MS. MULVEHILL: Two things. One, I know a year ago, when we met before with the depositions, before all this information came in, you mentioned we had a 50/50 chance, so your probability has improved --
MR. JOSLYN: Yes.
MS. MULVEHILL: -- in the sense of our chances of winning have actually improved?
MR. JOSLYN: Yes.
MS. MULVEHILL: This is a whole separate issue, but declaring -- we had declared a state of financial urgency, the City had declared a state of financial urgency and won that against the unions, so I don't know if that would have any --
MR. JOSLYN: You would like to let that slip, wouldn't you?
MS. MULVEHILL: That's why I am telling you.
MR. JOSLYN: Look, everybody in that jury room knows that local governments are under extraordinary pressure, every one of them.
They are all going to know their tax bills, they are all going to know -- I mean, you have to -- I will tell you this: I have tried 20 jury trials, probably 25 cases like this in my career. The juries are smart. You think all you are going to get are migrant workers or something like that. Every jury I have had has had accountants and stockbrokers and business people on it, and they are -- my firm belief is that a jury is way smarter collectively than they are
individually.
When you have a consistent, easy to tell story, I just -- I think they get it. I really do. I have a lot of faith in jurors.
MS. TRIOLO: Commissioner Mulvehill?
MS. MULVEHILL: I have one follow-up, and this is just in the event that it does end up going to trial. One thing that kind of -- when you said -- it just didn't feel right to me when you mentioned that you would go into the interview with the jury and say, Well, you know, Lake Worth's screwed up to kind of get their perception. I would suggest that we didn't do it that way, that -- my suggestion would be we would ask them, What do you think about Lake Worth?
MR. JOSLYN: No, no, no.
MS. MULVEHILL: That's just my personal opinion.
MR. JOSLYN: If you want a show of hands, you do it this way, I'm telling you. What you want is people to hold their hands up. Okay?
And the way you do that -- the way you do that is: How many here think that Lake Worth is -- because you read all the time that they are screwed up, did something wrong here, before you've heard any evidence, how many?
MS. MULVEHILL: Before you heard any evidence.
MR. JOSLYN: How many?
MS. MULVEHILL: I just think you put it in their mind.
MR. JOSLYN: I will tell you what, I had an immigration lawyer I defended one time that had been investigated by the federal government where they wired up his clients -- threatened them with deportation, wired up his clients to go into his office to try to get something on him.
That case was dismissed shortly before a trial that he had been involved in the scheme to get immigrants over here to invest in businesses that weren't worth what they were worth.
This guy was very slick, okay? Handmade shirts, handmade shoes, but he was honest. So what I did was I said -- the very first question I asked was: I represent a Jewish lawyer from Palm Beach. How many of you think he has done something wrong? I got six people to hold up their hands, okay? And it didn't hurt him a bit, but those people didn't sit on the jury.
And once they hold up their hands, you go, okay, now, you understand this doesn't have to do with the power plant, it doesn't have to do with this or that, does that affect your ability to try this case fairly, or you could do it the other way. So as a result of your strong opinions, are you sitting here telling me you can't try this
case fairly, you are so prejudged against them that you can't sit fairly?
I don't like to do it that way, because no one wants to admit that they're prejudiced, okay. You got to do it a different way, and there's a bunch of ways to do it.
So that's why I have these guys, because as a commercial trial lawyer, I don't do jury trials but more than once a year or, so I'm not as good at picking juries as I am at trying the case, so I get the assistance I can.
MS. MULVEHILL: Okay.
MR. JOSLYN: But we will have all of that ready to go by the time this is --
MS. TRIOLO: When do you think we could reconvene for a meeting after?
MR. JOSLYN: Let me call or I will e-mail Glen.
MR. TORCIVIA: What I will do, at your next public meeting, I will announce and request another one, and we will coordinate a date. We can always cancel it, but at least we will have it scheduled.
MR. JOSLYN: Okay.
MR. TORCIVIA: Maybe a month out from now might be a reasonable time, because you have to coordinate --
MR. JOSLYN: One more suggestion I would just make overall, and this has nothing to do with this case. The attorney has used -- on the other side has used the phrase shade session to refer to the
attorney/client session in December that we had. That is incredibly prejudicial, okay?
I would just suggest to you overall, in attorney/client sessions now, just don't ever refer to them as a shade session, okay?
MS. TRIOLO: I kind of agree with that myself.
MR. JOSLYN: It's an attorney/client session, all right? That was one of the things that they really picked up on, the psychologist that were doing the jury simulation, just -- and, you know,
I hadn't thought about it one way or the other, but it's right. It sounds shady. It's the noun version of the adverb.
MS. TRIOLO: Thank you, I appreciate that. Any other questions Commissioner McVoy?
Mr. McVOY: You obviously know more about how to approach these things, but you mentioned that the Greer trial may play a role in this. Could we come in later in the game, quite close to December 17th, and ask him, Do you want to settle?
MR. JOSLYN: Oh, we could -- you could do it up till the day the jury comes back.
MR. TORCIVIA: But at that point, you probably spent probably 100,000 of that 200,000.
MR. JOSLYN: Yeah.
MR. TORCIVIA: Every day we are getting closer, he is preparing. He did a great job preparing the case.
MR. JOSLYN: It's -- I think we do it now and forever hold our peace.
The one thing I will tell you is that since I haven't seen this guy in trial, I'm going to go up and sit in the Greer courtroom for a while and watch him for a couple of days, just to see, because I just want to know what we're really facing.
MS. TRIOLO: I think you should.
MR. JOSLYN: It's important. He could be, you know, a real super star, and, you know, we will have to see.
MS. TRIOLO: I know you all know this, but obviously it's called a shade meeting -- it's no longer called a shade meeting. It's called an attorney/client session for a reason, but none of this information can be shared outside of this meeting, just a reminder to everyone.
MR. JOSLYN: If any of you want to see any of this stuff, I can certainly one on one meet with you and show you anything you would like to see.
If you want further additional information or something you want to discuss, you have a question, feel free to talk with the Manager and get the message to me if you ever have a question or anything like that.
I mean, it hasn't happened so far, but if you have a question or something along the line, please -- or you hear something, you know -- I mean, I get e-mails from -- I'm sorry, I get e-mails occasionally from Mr. and/or Mrs. McNamara and a couple of other people, Hey, we just want you to know this, we want you to know that. So if you have anything you've heard or you wanted me to
know, just let me know. Just as long as we don't do it with more than one of you at a time, it's no problem.
MR. BORNSTEIN: This is the second time I have heard your recounting of the long epic odyssey. Is that memorialized in any factual form that we can --
MR. JOSLYN: No.
MR. BORNSTEIN: Not yet?
MR. JOSLYN: No.
MR. BORNSTEIN: It's quite a lot.
MR. JOSLYN: It is. I can put a timeline --
MR. BORNSTEIN: No, don't, don't spend any time on that. At some point, we'll get this transcript.
MR. TORCIVIA: When the case is finally finished, because the case could be appealed, too, either sides wins or loses, so when it's finally finished, that's when this becomes a public record.
MR. JOSLYN: But the transcript can be prepared now, correct?
MR. TORCIVIA: She can prepare it, but it's not a public record until after --
MR. JOSLYN: I understand, but I mean the Manager --
MR. BORNSTEIN: Well, the question was, would any of you find that kind of handy for referring this in any way --
MR. JOSLYN: You know what? I'm sorry, I have an outline of the case. It isn't as in depth with all of the facts, but that I do for an audit or inquiry response. Let me find it, and I will e-mail it to you.
MR. BORNSTEIN: If you e-mail it, it's still attorney/client?
MR. JOSLYN: I always -- when I communicated with Elaine, I always said, Greater Bay Lake Worth case, ongoing litigation attorney/client communication.
MR. TORCIVIA: I would suggest not e-mailing, only because e-mail is so easily accessed. Put it in an envelope and mail it.
MR. JOSLYN: All right.
And closer to trial when I -- I mean, after -- I'm not ready to do an opening statement outline yet. I've sort of got it in my head, but until I know what the two prime rascals have to say, I mean, there is not really a way to do the -- it's just a mass of facts that we have been living with so for so long, so --
MS. MULVEHILL: Do we want to get a summary, just to be clear -- maybe, Glen, you can --
MR. TORCIVIA: My understanding is that Brian is going to give the other lawyer -- kind of go fishing and see if there is any interest
whatsoever in trying to get it resolved.
If there is any interest, we will reconvene at meditation, and hopefully get it resolved or at least a number to bring back to the commission as a whole at one of these sessions, attorney/client sessions, within the next month.
MS. MULVEHILL: Very good, thank you.
MS. TRIOLO: The meeting formally known as shade is recessed.
THE COURT REPORTER: Are we off the record?
MR. JOSLYN: Yes.
(Thereupon the proceeding was concluded at 6:47 p.m.)
![Dr. W. H. Cotton’s ode: “Oh, My Lake Worth, Florida!” [circa 1920].](http://1.bp.blogspot.com/-yhHyCn84ZIQ/WezjlEL-0tI/AAAAAAAAPZ4/CzkhriK6zpEJJ3d9Je1495d49gIhnMlxACK4BGAYYCw/s1600/LakeWorthPioneers.JPG)
