It happened again today…I came to my office to find more documents, filed by the court….that help move the Plainitff’s case along.  In the context of the larger statewide effort to


We all see more and more instances of courts providing aid, assistance, encouragement and relief to the banking industry and their lawyers.  This is certainly bad enough in anecdotal situations, like the motion I received here on my desk, but it is of course far worse when this assistance is systemic, universal, the guiding force and mission of the entirety of the foreclosure justice system.  There are so many systemic preferences that are being provided to one side in this litigation system.  Foreclosure mills are being given preferential treatment and access to court calendars, foreclosure mills are given blocks of time so that they can conveniently and efficiently be awarded final judgments in bulk.  Foreclosure mills are being permitted to “appear” at hearings telephonically, in violation of written and existing court rules, where defendants are not afforded such rights. A defendant who fails to appear at a court hearing will have a judgment entered against him, when if a plaintiff does not appear they just get rescheduled.  If  a plaintiff shows up for trial unprepared, they will get a continuance….if a defense attorney shows up unprepared courts will demand the case go forward and a judgment will be entered against a defendant.

I recently had a trial continued THREE TIMES!  THREE TIMES! right in the middle of trial only because the plaintiffs attorney was not prepared to go forward with their case….the court directed the plaintiff to go out, collect (or create) the evidence it would need to win and come back better prepared to win.  Similarly, I’ve had hearings continued multiple times when the plaintiffs failed to prepare or have the evidence they need to properly respond to the issues in their cases.

And of course, I’ve never heard of a judge saying to a foreclosure defense attorney…


And yet, this is precisely what is  happening in courtrooms across this state.  This of course sets up a most dangerous precedent.  Think of this in the criminal context,  what if Judge Ito, in the OJ Simpson trial said,

“It’s clear that the defense is winning, let’s continue this and Prosecution team, you really need to focus on how you can exclude the evidence they’re using…pay close attention to section 4.130 of the evidence code and exclusion of testimony…that’s where your case is weak and that’s what you need to tighten up on to win.”

Or how about in family court,

“Attorney for the Husband it’s clear that the Wife is presenting a credible case that you’re physically abusing your children and if things keep going this way I’m going to be forced to deny you custody, so go out and find some evidence that I can use to prevent this from happening.”

Or the Medical Marijuana case currently in the Florida Supreme Court,

“Ms. Bondi, I gotta tell you, Mr. Morgan is making a very compelling argument here that quite frankly we’re going to have to accept.  We’re going to continue these oral arguments so you can go out and turn this case around. Here are the cases you need to focus on and here are the arguments you need to make in order to win…we’ll see you back here in a few weeks.”

And yet, this is precisely what is happening in courtrooms all across this state as courts are doing the work for plaintiff’s attorneys.  This is not at all subtle. This is direct and specific assistance to one side, disproportionately helping one class of litigants to the detriment of another class of litigants.  Not just anecdotally, but systematically in a way that damages the integrity of the entire judicial process.  And it’s not just individual cases, it’s entire procedures, mechanisms and processes that have been implemented that provide material assistance to one class of litigants.  Adding insult to injury, the funding used to provide this material assistance was paid directly by the class of litigants that these procedures are benefiting.

I’m talking specifically about the National Mortgage Settlement money that was supposed to be used to “help consumers”, but which is instead being used to “help the courts move cases more efficiently”. And so all the procedures and court staff and even purchase of hard assets directed at tilting the scales against one side in litigation.

There is in fact a cancer that is eating away at the core of our state’s judicial system.  It is the grossly improper interference that the legislative branch and executive branches are playing in coercing, intimidating, bribing and extorting the judicial branch.  We saw this most dramatically at the highest levels when the executive and legislative branches engaged in aggressive campaigning against Florida Supreme Court Judges.  We see more evidence of improper influence in recent moves to limit the terms of chief judges in circuits and in the gag order that were placed on judges as part of that same rules change and case that in fact went all the way to the Supreme Court.    In the context of foreclosure the pressure is direct and very specific. The legislature and the executive branch tell the judicial branch that funding for the entirety of the judicial branch depends on the ability of the judicial branch to dispose of foreclosure cases in a manner directed by the other two branches.  And it’s not stopping there.  The legislative and executive branches are introducing dangerous new procedures that govern what lawyers are named as judges, which will ensure that politically connected (and more easily controlled)  judges are appointed to the bench.

It’s long past time that Florida’s judicial system…lawyers, citizens..and especially judges…take a deep breath and take a long hard look at what’s happening right in front of our faces. Every judge takes the same oath that every lawyer takes….to preserve and protect the Constitution.  And there is a special and sacred obligation to protect the integrity of the entirety of the branch. The judicial branch must not continue to bow to threats and pressure of the legislative and executive branches. The judicial branch must not continue to allow funding and budgetary matters be tied, in any way, to “performance measures” established by the legislative and executive branches.  The entirety of the judicial branch must be prepared to engage in a real showdown with the legislative and executive branches, rather than continuing to bow to improper pressures.

The integrity of our entire system of government and in fact our very notions of what it means to be American citizens depends on the ability and willingness of judges and lawyers to stand up and fight. Where is that fight?

  1. By offering legal advice as to how to introduce evidence and offering an unsolicited invitation of a continuance, the Court suggested to Plaintiff’s counsel how to proceed strategically which breaches the principle that “[t]rial judges must studiously avoid the appearance of favoring one party in a lawsuit.”  Shore Mariner Condo Association v. Antonious, 722 So. 2d 247, 248 (Fla. 2d DCA 1998) (holding that a trial judge’s improperly interjected himself into the litigation by suggesting an additional defense to a civil defendant).  See also Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (holding that a trial judge’s provision of strategic advice to a party during a trial demonstrated impermissible bias); J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998) (disapproving a trial judge who assisted with a delinquency prosecution by requesting the production of additional State’s evidence).

In its petition for writ of prohibition, Shore Mariner Condominium Association, Inc. (Shore) challenges the trial court’s denial of its motion to disqualify the sitting judge. We hold that the trial court interjected itself into the litigation improperly by suggesting an additional defense to the civil defendant and grant the relief requested.

For the most part, the claims advanced by Shore in its shotgun attack on the trial judge are legally insufficient. The litigation centers around the access the defendants (Antonious) require for a motor vehicle to reach a newly-constructed garage for their home which apparently violates the terms of a pedestrian easement owned by Shore. The trial judge suggested to the parties that they consider settling this dispute by arranging for Antonious to purchase a right-of-way, because if the matter proceeded to judgment, he cautioned, no such compromise was possible and there would be a “clear winner and loser.” Antonious points out that Shore’s sense of outrage about the trial judge’s suggestion for settlement is misplaced. For one, Florida Rule of Civil Procedure 1.200(a)(7) itself contemplates discussions between civil parties and the trial court about compromise settlements; additionally, most challenges, whether contested over the permitted uses of an easement or the distance of a footrace, are concluded by declaring an outright winner. We find nothing disturbing or inappropriate about the way the trial judge attempted to encourage a resolution of this dispute.

As well, Shore takes exception to comments the judge made about the impact a judgment for Shore would have on Antonious. At the time, the judge had heard two days of testimony, over a period of months, and these musings were nothing more than impressions of the case which the trial judge had formed during the presentation of evidence, which case law properly recognizes is an inevitable by-product of human decisionmaking. See Brown v. Pate, 577 So.2d 645 (Fla. 1st DCA 1991); Mobil v. Trask, 463 So.2d 389 (Fla. 1st DCA 1985).

Shore alleges in its affidavits in support of its motion to disqualify the trial court that the judge instructed Antonious to amend his pleadings to include defenses associated with necessity. It is unrefuted that shortly after these comments were purportedly made, and at a time well after the trial had been under way, Antonious moved successfully to amend his pleadings to include these defenses. We hold that this allegation is legally sufficient, and that the trial judge should have granted the motion. 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. See Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (holding that a trial judge’s provision of strategic advice to a party during a trial demonstrated impermissible bias); see also J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998) (disapproving a trial judge who assisted with a delinquency prosecution by requesting the production of additional State’s evidence).

Petition for writ of prohibition granted.

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