FOR IMMEDIATE RELEASE - 1/14/2019 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393 quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com THE CODE OF SILENCE It was with much skepticism that I read the Third District Court’s Order to Show Cause directed to Miami attorney Bruce Jacobs. See, Bank of America v. Atkin, No. 3D18-1840, (December 14, 2018). Most notably, I was concerned by the following statements: “Insults or disparaging comments by lawyers to courts in court filings cannot be justified as zealous advocacy because they risk alienating the very judge the lawyer was hired to persuade.” “[T]his venting can come at a high cost to the client’s interests.” Essentially, those assertions are an admission that the opinions of the court may be affected by disparaging comments. Are judges not expected to rise above such comments in order to be truly judicious? If a judge’s job is to seek the truth and apply the law, why should such commentary play any role? Is venting not understandable when reason fails? Shouldn’t strong words open a judge’s eyes instead of lead them to shut? Judge Logue goes on to write that insults “reflect–not attempts at persuasion — but the abandonment of any attempt to persuade.” “Insults usually garner resistence to an idea...” Is the court giving excuses for not giving the matter due consideration? The court then goes on to list what “insults” Mr. Jacobs allegedly committed. Generally, they are: • Asserting that the Court violated the standard of review, ignored Florida Supreme Court precedent, and falsified the facts in contradiction to the record. • Questioning the ability of the Court to be impartial. • Asserting that a circuit court judge acted with disregard for the rule of law and the client’s constitutional rights, only to have the District Court affirm. • Stating that a new circuit court judge who rotated into the division changed a favorable ruling because opposing counsel held a fundraiser for the judge. What qualifies these statements as “insults” as opposed to “criticisms”? Mr. Jacobs was not using profanity, nor name calling, nor making any threats. So, where is the direct contempt upon the court that empowers it to have jurisdiction over the alleged acts? Mr. Jacobs appears to have been merely pointing out what he believes he could prove. If the court considers Mr. Jacobs to have violated the Rules of Ethics regulating attorneys then the court should defer the matter to the Florida Bar, not take it upon itself to make a determination. I can not speak about the merits of Mr. Jacobs filings before the court, because unlike the Florida Supreme Court’s website which allows access to the briefs, motions, appendix, and records, the only way for the public to view those is to drive out to the court, make a public records request and hope for a favorable response, or persuade a party to provide them. That unfortunately fits well with the code of silence enforced by the court. Freeing access to the records filed before the court would allow for greater opportunity for independent public review, and review by others in the legal community. Presumptively, the reader is expected to believe that the court is correct and that Mr. Jacobs is wrong. However, I for one do not make that assumption. If allowed to make a presentation to a truly impartial panel, I could also show instances where the court looked past the standard of review on an appeal from a summary judgment and interpolated evidence contrary to the position of the appellant instead of taking the evidence in a light most favorable to the appellant. I could show instances where the court has asserted matters to be “facts” because they were stated in the opposition’s brief – but were lacking in the record. I can show where the court affirmed a lower court order awarding sanctions upon finding it frivolous to sue a lending institution for forged TILA disclosure documents. I can show where the court did not realize that an order appointing a trustee over a condominium association’s property (i.e. over the common elements, rights to collect assessments, rights to enforce collection) did not, and could not, give the trustee immunity for the unconstitutional taking of a unit owner’s property — especially without serving process and allowing an opportunity for the unit owner to be heard in court BEFORE the taking. Were those omissions and incorrect outcomes intentional? I can only tell you what I think. If my hands were not constrained by the court from uncovering likely facts, or if my resources were sufficient, or if someone with clout sided with me, then perhaps one day I could tell you what I know. So, what impartial panel would hear such complaints? Not the Florida Supreme Court unless they have, and then take, jurisdiction. Misstating facts does not give the Supreme Court jurisdiction. Using an incorrect standard of review only gives the Supreme Court jurisdiction if the misapplication is apparent from the face of the opinion; and, even when jurisdiction is present the Supreme Court has the discretion to deny review, which they most often do. Ignoring precedent does not give the Supreme Court jurisdiction — only stating an incorrect precedent or one that conflicts with another District Court could potentially yield jurisdiction to the Florida Supreme Court. Intellectual deficiency is a serious enough problem, but if the court’s failure to be logical and precise goes beyond intellectual deficiency and rises to the level of intellectual dishonesty, that is a very serious matter. Intellectual dishonesty will only serve to further encourage crony jurisprudence at the trial court level and disenfranchise the masses. And, it is frustrating. It is frustrating because most want to assume that the appellate court is correct. It is frustrating because just about no one with the clout to do anything about intellectual dishonesty will give the matter sufficient time and consideration to derive whether an attorney’s gripes concerning problems with the appellate court have merit (thus the amplification of intention). It is frustrating because many, while skeptical, have simply given up hope that the system will ever overcome highly political appointments to the bench, which itself entices intellectual dishonesty. So, the court enforces its code of silence in the belief that failing to do so might encourage others to respond with open discontent. Yet, all it takes to incite open discontent is for the court to be intellectually deficient, intellectually dishonest, remiss, condescending, obfuscating (ex. – altering the audio-video recording of oral arguments), conniving (ex. – a judge intentionally making their way onto an appellate panel), deprecating (ex. – asking an insinuating and off-beat question at the start of oral argument), or disrespectful (ex. – walking out on counsel abruptly during oral argument). Although, for the appellate court judge who is intellectually dishonest, yet writes eloquent anti-consumer opinions, the reward might just be an appointment to the Florida Supreme Court. God, save the State of Florida.
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yFOR IMMEDIATE RELEASE - 10/27/2018 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393 quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com OH! SAY, YOU CAN SEE! or TRY TO PIN THE TAIL ON THE DONKEY A blindfolded Lady Justice is emblematic of the concept that the law cares not about the irrelevant characteristics or traits of those appearing before her. Whether wealthy or poor, politically powerful or common citizen, crony or stranger, educated or ignorant, tall or short, male or female, democrat or republican, black or white, lender or borrower, religious or not, from here or from there, all are endowed with the same rights under the law. At least, that’s the concept. But, is that fact or fiction? Can we do better? Many litigants and their attorneys have mused about losses to those with more wealth, greater political connections, personal connections with the judge, reputation of the opposing attorney, unknown reputation of the complaining attorney, family connections of the opposing counsel (i.e. relative is or was a judge or politician) and every combination thereof. Was there bias by the trial court judge? If so, did the judge recognize the bias? After all, judges are subject to the same human frailties as the rest of us. It really is not possible to eliminate all elements of bias at the trial court level. Out of necessity, there must be a face-to-face interaction between the judge, counsel, the parties, and witnesses. There is simply no other way to present a case and have it tried. However, at the interim appellate levels (i.e. Florida District Courts) it is definitely possible to significantly reduce factors that could lead to judicial bias by putting a real blindfold on Lady Justice. Of course, some bias would always peek through because of a judge’s proclivities as to the case presented. If a judge is viewed as pro-business, and it is a business case, there is no practical way to avoid that potential bias. Does an appellate court panel need to see counsel for the parties face-to-face? Not likely. If the appellate court has questions regarding the legal arguments, then it could ask for further briefing in response to those limited points. That makes much more sense then using oral argument for that “gotcha” moment which a panel member might use to justify a position they hold — perhaps incorrectly. In fact, there is no reason for an interim appellate court panel to know the names of counsel for the parties, or the names of the parties for that matter. Briefs could be written in a highly standardized format with mere reference to party labels (appellant - appellee, petitioner - respondent, landlord - tenant, buyer - seller, etc.) and not to the actual parties names, nor the lower court case number, nor the name of the lower court case judge. Names of counsel, proper names of the parties, and even the name of the lower court judge are all irrelevant, or at least should be, to the appellate decision making process. Yet, each of those factors could render a potential bias. Admittedly, although the same factors would apply to the Florida Supreme Court, because of the attention, public awareness and scrutiny given and received to their few decisions, and because their decisions derive for a full panel of seven judges and not three, there is much less reason to mask the parties and counsel appearing before the justices. If justice were truly blind at the district court level then only the clerk of the court would be privy to information regarding the names of the parties and their counsel, the lower court case number, and the name of the trial court judge, at least until such time as a final opinion or order was rendered. Although, some government entities would, of necessity, be made known because of the nature of the case. For instance, a statute particularly directed to a state agency would make it known that the agency was a party. The same would be true of county and city codes in dispute. Verification of the cited statutes and ordinances, and independent research by the court, would be impossible without such exact references. By blindfolding justice in this suggested manner, any tendency of an appellate judge to think favorably toward the position of a crony would be eliminated. Those who would dare approach an appellate court judge and seek favor, or worse — tempt the judge with lucre, would find it near impossible; that is, provided secrecy and proper decorum is maintained within the appellate court itself. Additionally, judges assigned to the appellate panel should be chosen from across the state instead of from the divisional district. Divisional districts made sense when judges arrived at court on the back of a horse and needed to meet in a room in order to deliberate. Today, district court judges could each be located anywhere and deliberate via live video chat. That would provide another layer of impartiality and separation of potential influence on the panel members. As a more basic measure, and as a first important step, we should insist upon laws, or better — a constitutional amendment, that gives independence to the clerk of the court and requires the clerk to make a random assignment of every case to a panel of appellate judges. Presently, there is no such assurance. Clerks of the several district courts in Florida are under the direct control of their district court, and most particularly the chief judge of their district court. Clerks are not independent. Accordingly, the chief judge could decide to assign a panel of judges to a particular case. Also, judges within the district could beg, bargain or negotiate their way onto a panel thus leaving the door wide upon for prejudicial influence. As it presently stands, the Florida district courts are very vulnerable to improper influences. Appellate court judges are, after all, also subject to human frailties like those of the trial court judges. Yet, there is little oversight. Instead of maintaining a strong appearance of impartiality, district court judges attend expensive lunches and dinners for free or at a substantial discount. These events are typically sponsored by very large law firms, and powerful attorney organizations; in other words, those that cultivate influence. While in attendance the judges hobnob with those who can afford to be there (i.e. politicians, the rich, the powerful, the influential, people who know people). If a district court judge is very good at hobnobbing then they might even be invited to an event in their honor so that they can be bestowed with an award — just for having done their job. Maybe (or maybe not) that is why opinions are written that refer to or imply nonexistent facts, or that badly misapply a law or constitutional provision, or are so wholly lacking in substance that further review by the jurisdictionally handcuffed Florida Supreme Court is impossible. While we are busy thinking about how to keep Lady Justice’s mind more focused on the issues, we should also consider a way to make her more revealing. After all, obscurantism is not becoming. Presently, if Joe and Jane Citizen questioned the decision of a Florida District Court of Appeal, they could do a public docket search over the internet, but their search would provide them nothing more than a list of the documents filed. Joe and Jane, from their computer, would not be able to read the underlying record nor review the briefs. Of course, anyone can go to the clerk’s office and ask to see what is in the file. However, the time that must be taken to go out to the court likely dissuades most from taking that step. Only the Florida Supreme Court allows everyone computer access to every filed (non-exempted) document. But, in order to have a full, open, and honest intellectual debate about whether a district appellate court’s decision is savory or unsavory, we must also see what went into their cooking pot. No one should fully digest a district court’s opinion without a review of the underlying record and a reading of the briefs on file. FOR IMMEDIATE RELEASE - 10/11/2018 Contact: Rex E. Russo, attorney
Re-print, re-publish, re-post, or Phone: 305-442-7393 quote freely, but give credit. Email: Rex@FloridaPropertyLitigation.com WHOSE VOICE IS NO LONGER BEING HEARD? - or - “WHO’S VOICE IS NO LONGER BEING HEARD!” The number of filings before the Third District Court of Appeal has been in serious decline over the last several years. In fact, 2017 saw about the same number of cases as were filed in 1992. That was 25 years ago! Yet the population in Miami-Dade grew by about 725,000 during that period of time, and by about 25,000 more for Monroe County, according to records kept by the U.S. Census Bureau.* Certainly the interactions of an additional three-quarters of a million people should spawn a greater number of legal conflicts. So, why the decline in appellate court filings? It would be very interesting if a research study were to assign classifications to the appeals and look at the statistical break-down of those cases filed over the years to determine the category that has declined the most. Last year the Fourth District Court of Appeal saw 3,967 cases filed to the Third District’s 2,815. Granted, the Fourth District has 12 judges to the Third District’s 10 judges. However, that’s a ratio of 331 cases per judge in the Fourth DCA compared to only 282 cases per judge in the Third DCA. On average Fourth DCA judges are reviewing 17% more cases than Third DCA judges. In part, the Fourth DCA judges have to make up for the fact that there is only 1 judge to about every 330,000 residents within the district, compared to the Third DCA where there is 1 judge to about every 277,000 residents. As a percentage, each Fourth DCA judge has to deal with about a 22% greater population assignment which likely explains their increased case load. If the dynamics of cases filed within each district are comparable, then the Third DCA has more judicial resources to apply to each case than does the Fourth DCA. That is not to say that the resources are sufficient for either district. It also does not explain the significant drop in cases appealed to the Third DCA — a statistic that one suspects is repeated across the districts. In order to maintain the number of filings at these levels, as opposed to the number of filings we would expect to see given the tremendous increase in the population, some demographic of the population had to give way. In other words, some of those litigants who filed cases 25 years ago, for whatever reason would not likely be filing those cases today in Florida’s Third District Court of Appeal. The reason could be the increased costs of an appeal; the reason could be finding a competent attorney willing to take the appeal; the reason could be a perceived bias by the appellate court to certain issues and litigants thus lowering the potential benefit to cost ratio; the reason could be attorneys made fearful of filing appeals; or, it could be any combination of those and other matters. However, we can fairly well hypothesize that banks, developers, insurance companies, government entities, and large corporations have not shied away from filing appeals. Who then? “They cried out in fear: “We are here! We are here! We are here! We are here!” Horton Hears a Who, by Dr. Seuss NUMBER OF CASES REPORTED AS FILED BEFORE THE 3DCA** 1992 there were 2,776 appeals filed Lawton Chiles, Governor (Dem.) 1993 there were 2,987 appeals filed " " " 1994 there were 3,080 appeals filed " " " 1995 there were 3,686 appeals filed (Peak) Lawton Chiles, Governor (Dem.) 1996 there were 3,608 appeals filed " " " 1997 there were 3,667 appeals filed " " " 1998 there were 3,432 appeals filed " " " 1999 there were 3,255 appeals filed Jeb Bush, Governor (Rep.) 2000 there were 3,654 appeals filed " " " 2001 there were 3,597 appeals filed " " " 2002 there were 3,492 appeals filed " " " 2003 there were 3,388 appeals filed " " " 2004 there were 3,279 appeals filed " " " 2005 there were 2,968 appeals filed " " " 2006 there were 3,201 appeals filed " " " 2007 there were 3,335 appeals filed Charlie Crist, Governor (Rep.) 2008 there were 3,324 appeals filed " " " 2009 there were 3,531 appeals filed " " " 2010 there were 3,449 appeals filed " " " (switched to Independent -- April, 2010) 2011 there were 3,353 appeals filed Rick Scott, Governor (Rep.) 2012 there were 3,426 appeals filed " " " 2013 there were 3,280 appeals filed " " " 2014 there were 3,148 appeals filed " " " 2015 there were 2,952 appeals filed " " " 2016 there were 2,932 appeals filed " " " 2017 there were 2,815 appeals filed " " " 2018 As of 09/30/2018 there have been 1,957 filed appeals – on track with decline. * https://www.census.gov ** These numbers were generated by going to: http://onlinedocketsdca.flcourts.org To determine the number of cases filed, you must do a check on the last active court date, then continue back-date checking from the bottom of the page for that date searching up until you get a “hit” for a new case filing (i.e. either a “notice of appeal” or “petition” for Miami-Dade; “acknowledgment letter” for Broward). That last case number indicates the number of filed appeals for the year. |
Author - Rex RussoOver 35 years experience with Appeals, Real Estate Litigation, and Bankruptcy Actions and Adversary Defense. Categories
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