Tuesday, May 17, 2016

An Amazing Motion for Disqualification

I recently read an interesting “Motion to Disqualify and/or Recuse a Judge.” It represents some of the most confusing and difficult reading I have ever run across, and it was prepared by an attorney. Some observations from the motion may be of value to others, and so I provide the following. 

The Motion begins by stating that the party “jointly and can’t minimally, with his attorney” . . . “avers the following." There is no explanation provided as to what “can’t minimally” means. It is a sentence that jumps off the page upon an even cursory review. 

Describing a circumstance “back in 2014,” counsel says that “consequently, due to the duties of other ‘unforseeable circumstances,’ and, had no control, no choice, but to forego this wake and and funeral services.” This curious paragraph likewise makes no sense.

These two are just incomprehensible and confusing. 

Another paragraph says that “the undersigned was upset with Your Honor’s unsympathetic and somewhat retaliatory Order denying my Motion for Continuance.” The attorney describes then filing a “Motion for Rehearing which was never ruled on by Your Honor.” 

This statement struck me for a couple of reasons. First, the motion for rehearing is absolutely the correct tool to use when something has been overlooked (much better than calling the judge's office to express frustration and ask staff what you should do next; but we do get those calls). But, the rehearing motion is not a tool to re-argue the merits that were addressed and ruled upon. It is inadvisable to do a sloppy job drafting and arguing a motion and they use a rehearing motion to afterward attempt what the initial effort should have been. 

I hear from attorneys periodically with complaints that some motion was denied. But review of some of those motions reveal bare-bone assertions of fact and often no recitation at all of law or rules to support a favorable decision. The purpose of a motion is to accomplish your goal. The odds of that go up with clear recitations of fact, and citations to law or rules that support the outcome you wish. Always consult with opposing counsel, and then state in the motion that you did so. That will enhance your chances of achieving your goal on the initial attempt. 

As an important aside regarding rehearing motions, if one is not heard, and no order is entered, the motion is deemed denied ten days later.  Rule 60Q6.122(1). Thus, if no order is entered, the rehearing is in fact ruled upon, it is denied. So, avoid the confused and inaccurate contention that any motion for rehearing "was never ruled on."

The drafter in this particular “Motion to Disqualify and/or Recuse a Judge” goes on to say “I attempted to mentally put defense counsel in, Your Honor’s actions behind me.” Another confused statement. In to what defense counsel was to be put is not clear from the sentence or from the context. 

The filing attorney took exception to opposing counsel’s personal email address not being listed in the e-JCC filings system. Instead, counsel saw a defense counsel address for “only his assistant.” Counsel concluded from this that the absence of the attorney’s personal email address “was perhaps, a deliberate attempt to insulate himself from the undersigned’s ability to confer with him.”

These assertions raise a couple of critical points. First, conferring does not generally occur by email. Conferring is an interactive process. Sending someone a motion and informing the of your intent to file a motion is not conferring ("enclosed is my motion to ______, if I do not hear from you in" - the next 15 minutes - or - by the close of business today - or - by tomorrow . . ."). This is delivery of an ultimatum. It is informational, but it is not "conversational," (from the same root as "confer").

Conferring means "to consult together; compare opinions; carry on a discussion or deliberation." Conferring is interactive. We could confer in emails or text messages, if that is a conversation. (I sound like my grandfather "these kids today . . .") I respect that for young people a series of written communications may be the way they normally communicate, and if there is back-and-forth, give and take, exchange of ideas and contentions, that can certainly be a conversation (but ultimatums by an email is not conferring and is not a conversation). So, the absence of a particular email to preclude "conferring" is an illogical contention. 

Despite the trend to communicate with electronics, I highly recommend, in the spirit of my somewhat tech-wary generation, that conversation occur in person or on the telephone. That does not mean telling staff to "call attorney ______ and tell them I am filing that motion unless I hear from them by _______." That is a third-person telephonic ultimatum, and is no better than an email ultimatum. The mode of conversation is important, but the character of the conversation is far more important. Have an interactive exchange, be cordial, disagree without being disagreeable. Discuss your differences and your agreements. 

Why discuss the motion? Well first of all, the rule says to. Second, conversations lead to understanding (maybe not agreement, but understanding). Knowing what opposing perceptions/positions are is important and powerful. You learn how the other side is perceiving and feeling through conversation. Smart attorneys use conversation to learn and understand.

The second point here is that counsel can use whatever email address they wish. There is nothing in the Florida Workers’ Compensation Rules of Procedure that requires an attorney use a personal email address for service of documents. By the same token, there is no requirement that counsel use her or his home address for U.S. Mail delivery. It is permissible to use an office address, a post office box, or your cousin Eddie’s address. But, whatever address you use, you are responsible for what is delivered there, even if it is your assistant's email address. 

In this “Motion to Disqualify and/or Recuse a Judge" counsel went on to explain that in a hearing he had complained “that his (counsel’s personal email address) removal from the party registry list perhaps, violates both the Florida Rules of Civil Procedure as well as the Workers’ Compensation 60Q rules although, I did not cite a specific reference section.”

I would remind that when raising an objection, it is always helpful to cite a specific rule(s), statute(s) or case(s) in support of the argument. Not citing a specific statute section or a specific rule may result in losing the motion or argument (back to the rehearing motion discussion). On occasion, the First District has held that doing research for the parties is the Judge’s responsibility. But, it is always best to prevail at trial. Appeals are expensive and time-consuming. And in the end, a different panel of the appellate court may feel as if doing the research and citing authority was the party's responsibility. I recommend that counsel do research and cite authority in support of arguments.

Yet another point is suggested by the motion's language about the rules. Remember the Florida Rules of Civil Procedure do not apply to Florida workers’ compensation proceedings, except when the 60Q rules specifically incorporate those rules. The Florida Courts have no authority to create rules for the OJCC, a part of the Executive Branch. Therefore, rely on the Civil Procedure Rules when the 60Q rules steer you there. Except in that situation, remember the Rules of Civil Procedure do not apply in this tribunal, so cite the 60Q rules in support of your argument. 

Counsel proceeds in the Motion to Disqualify to accuse that “Your Honor’s actions of what I characterize as a ‘violation by cumulative due process,'” had “emboldened defense counsel . . .to new extreme of heightened confidence and arrogance.” There is apparent disappointment with the manner in which the case had apparently progressed. 

Counsel continues “as Your Honor has done in the past, and will adversely, as Your Honor has continued to do in the past, and at this point, we no longer feel that Your Honor is capable of providing a impartial and fair trial to the claimant, and the undersigned, and consequently, maintain at this moment, a well-founded fear that we will not receive a fair trial." This is a mouthful. It is a long and somewhat confusing sentence. In drafting, I recommend concise statements, perhaps that mouthful could be restated simply "the undersigned has a well-founded fear she/he will not receive a fair trial." Generally, saying something briefly and succinctly is best. 

In another curious statement, for authority for the request for disqualification, counsel says “see Kline case,” without providing the full name or citation for that case.  It is impractical to expect a judge to engage in a hunt for the "Kline case." Provide a citation, either a reference to the official reporter, a catalog number from an online service like Westlaw, or at least the full name of the case, the name of the court that decided it and the date of the decision. One might even attach a copy if the case is that compelling. It is not realistic to expect a judge to spend hours searching for the "Kline case." A quick Westlaw search found 1,627 cases with the word "Kline" in the title. 



On the upside, only 68 of those reference Florida. 



But with no case details in the motion, it is difficult to tell which of the 1,627 or even 68 cases the attorney want the judge to read. It is possible that expecting the judge to do so is as unwise as failing to cite authority in the first instance. 

This Motion to Disqualify included many additional sentences equally difficult to comprehend. The wording is verbose and in instances redundant. This is distracting; use simple, direct language. State your objection or motion, and explain why you believe you or your client is entitled to relief. Clear and simple language in your motion or response will aid the judge in comprehending what you wish, and determining whether you receive it.

Finally, I encourage proofreading. Ask someone else to read your motion or memorandum before you send it off to the judge. If your office staff, associate or partner cannot understand the pleading, it is unlikely that the judge will. Abraham Lincoln said "a lawyers time and advice are his stock in trade." Make that advice and time matter to you or to your client by effectively communicating your thoughts and requests to the judge. 

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