In Sanctions and Speech (June 2019), I discussed a December 14, 2018 decision of the Florida Third District Court in On December 14, 2018, the Florida Third District Court decided Bank of America, N.A. v. Atkin, ___ So. 3d ___; 2018 WL 6595138 (Fla 3rd DCA 2018). That decision was an order to show cause regarding statements by an attorney that were found to impugn and disparage various judges. The litigation is interesting for other reasons as well, however, judicial behavior and ex parte communication. They are interesting to me because I have seen similar behavior in Florida workers' compensation proceedings when I practiced in the old days.
In the Atkin litigation, two lenders had sought foreclosure. The borrower had signed a note in 2006 and stopped making payments in 2008. Nine years of litigation followed. Eventually, a trial was set for May 24, 2018, and a deadline of fifteen days before the trial was ordered regarding any "pretrial motions."
Nine days before trial, the borrower hired a new attorney. Three days before trial, he filed a motion seeking to have one of the defendants held in criminal contempt. On the morning of the trial, the attorney asked to have that motion heard, and over the objections of the defendants, the trial judge allowed it.
In overruling the objection to hearing that motion, the trial judge explained:
“I've known _______ (attorney) a long time – and I was here before the foreclosure thing got crazy – he's been trying to make law,” and “_______ (attorney) has done a lot of work over the course of the years to be able to be standing here in front of everybody and making these suggestions.”
There followed a "five-hour hearing" on that motion. As an aside, nothing is any more irrelevant than how many years the judge has known the attorney; decisions should be made on the facts, the evidence, and the law. It is also irrelevant what motivates an attorney ("trying to make law"). What is relevant is that the parties are there to present their case, and the judge should decide what they present.
The judge's first mistake was failing to create a clear record of the proceedings. The Court noted that the trial judge allowed the attorney over "objection, to advocate as a lawyer and testify as a witness in a seamless manner." Because of this, the Court concluded: "that the record is unclear when he was advocating and when testifying." The trial judge has many responsibilities, and keeping the record straight is one of the most critical. This is a challenge in workers' compensation fee proceedings when an attorney testifies about the volume or reasonableness of her or his hours; judges should ensure the record is clear between testimony and argument.
The trial judge's second mistake was her/his abandonment of the role of umpire for the role of coach. Twice, the trial judge rendered advice to the attorney, saying "I think you need to get that established as a matter of fact, and maybe by a person with knowledge” and “I don't think you're the person to talk about it. I think you want to put together that evidence in some fashion.” This is clearly advice.
The Court held “Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.” Shore Mariner Condo. Ass'n v. Antonious, 722 So.2d 247, 248 (Fla. 2d DCA 1998). “A trial judge crosses the line when he becomes an active participant in the adversarial process, i.e., gives ‘tips’ to either side.” Great Am. Ins. Co. v. 200 Island Blvd. Condo. Ass'n, Inc., 153 So.3d 384, 388 (Fla. 3d DCA 2014).
At the end of the hearing, the trial judge "orally announced" she/he would grant the motion. The trial judge instructed the attorney to submit a proposed order. As an aside, drafting orders is the judge's job, not the attorney's. When the proposed order was submitted, it reflected that the trial court was granting "the Court's own motion” (which was false). And, the submitted order "relied upon an affidavit filed after the hearing." The trial judge thereafter entered her/his own July 30, 2018 order denying the motion without prejudice.
Within days of denying the motion, on August 3, 2018, the trial judge found her/himself in another proceeding with the same attorney (but which hearing did not include all the other attorneys in the case in which that denial had just been entered). There, on the record, the trial judge and the attorney "discussed the July 30, 2018 order and the Borrower's plan to file another motion." The discussion was significant, and the appellate Court quoted it in the opinion.
The Court held that "whatever the trial court might have subjectively intended, a prudent person would reasonably fear the exchange reflected a consultation between the trial judge and Borrower's counsel." The conversation included a discussion of how to "make the trial court's future decision in the Borrower's favor 'bulletproof on appeal.'” The gist is that the trial judge had decided how to rule on a motion that had yet to be filed. The Judge appeared to coach counsel as to what to file next, and perhaps what it should say. Ex parte communication is inappropriate, and the Court held that it alone is "an independent basis for prohibition." See What is Ex Parte (January 2018), and Judicial Behavior and Ex Parte Communication (October 2015).
The lender/defendant moved to disqualify the trial judge. The judge denied the motion and therefore the matter proceeded to the Third District Court on a petition for a writ of prohibition (one of the three common extraordinary writs, see If it is Moot, what does it Matter? (August 2018).
The Court concluded that the motion was timely. It explained that such a motion has to be filed "within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.” (citation omitted). There was an argument that this meant 10 days after that August 3, 2018 hearing. The Court explained that a party first must have "standing," that is be part of the lawsuit. One of the lenders, "BA," that moved to disqualify the judge was not even part of the lawsuit on August 3, 2018. Furthermore, the borrower struggled to prove when BA became aware of the grounds. The only real evidence was essentially its admission that it received information on August 8, 2018. The Court concluded that the motion to disqualify was timely based on that date.
Reading the opinion reminded me of one of my first motion hearings in workers' compensation. Having spent a day (over) preparing, I was frustrated when the judge and my opposing counsel spent many minutes discussing some other matter in which neither I nor my client was involved. At the time, as a very young lawyer, my irritation was about distracting from the case on which I was present, and the arguments that I was waiting to make. In retrospect, I have frequently marveled at that cavalier conversation between the judge and counsel. Clearly, I should have informed the other party in that case they were discussing. I wish I had.
I was also reminded of the delineation between coach and umpire that is discussed at length in Adjudicate, not Litigate (May 2019), and When Judges Become Opponents (April 2019). The trial judge's job is to listen to arguments and evidence, to weigh them carefully, and to make an unbiased and impartial decision. The Judge should never devolve to the role of a fan or a coach. For that matter, neither should a state mediator, though that has happened from time to time. Also during my tenure as a young lawyer, I tried a case in which I made objections during the injured worker's testimony. After each, the trial judge would look at opposing counsel and say something like "Ask her __________ instead." That was a very frustrating morning.
Despite the plethora of examples that can be discussed and the many instances that are recorded in decisional law, it seems that such coaching and favoritism persist. It is possible that it is merely perceived, that the trial judge in question in Atkin has not intended to display bias or to coach. But, the point is not intent, but whether some party perceives some favoritism; whether some party concludes "that he could not get a fair and impartial trial.” Atkin, at 4.
Trial judges know better. Perhaps we just all need a periodic reminder? Hopefully, this post serves.
