In April 2019, the Florida Supreme Court issues its decision in In Re Dennis Daniel Bailey, SC18-2060. It it instructive and worth of discussion, though it is not about a workers' compensation trial, but a jury trial.
The matter arose from a "side bar" conversation during a jury trial a year earlier. The "side bar" is a conversation between the presiding judge and the attorneys in the case, in which they gather at the bench and speak about something that the jury cannot hear. This is how small issues are resolved without the jury having to leave the courtroom. In the past it was held in hushed tones so that the jury members would not hear. More recently, courtrooms are equipped with "noise" machines that strive to mask those voices. Of course, the judge could always have the jury retire from the courtroom for arguments, but that is a time consuming process. During the course of trial these "side bar" arguments are reasonably common.
In this instance, one party had two attorneys present. During the argument, "one of the attorneys tried to help his colleague articulate a point." The judge instructed that lawyer to stop, saying “one lawyer at a time,” “only one lawyer argues,” and “you have a hard time understanding me? Two lawyers can't argue one argument.” From this recitation, it would appear possible that the second attorney attempted to interject more than once. When the attorney spoke again to apologize, the judge "ordered his courtroom deputy to . . . return this attorney to his table." The Court noted that "all of this was in full view and hearing of the jury.”
That parties second attorney then asked for time to file a disqualification motion, which the judge allowed. When that was filed shortly thereafter, the judge "denied it as legally insufficient." The judge saw no reason to remove himself as he felt "he could be fair to the parties." He admitted he did not view the situation from the perspective of the defendant.
When the ensuing complaint was investigated, the judge admitted "his conduct was not patient, dignified and courteous." He admitted that his behavior did not "promote confidence in the integrity and impartiality of the judiciary." He admitted that his actions did not "preserve the integrity and independence of the judiciary." The Court accepted those admissions and added that he should have granted the motion to disqualify.
The Court quoted extensively from the report of the Judicial Qualifications Commission. First it noted its agreement that it is appropriate to "to place restrictions on the presentation of cases or arguments; such as a one-person-per-argument policy." The Commission noted, however, that any such rule "should not be enforced arbitrarily, and never under the threat of physical force." The physical force element, "in full view of the jury," was "egregious enough that it harmed the integrity of the judiciary."
The Commission and the Court reminded that judges have a variety of tools available during proceedings. There is a tacit recognition that a judge must preserve order during proceedings. However, the Court specifically noted that the judge did not resort to any of the available tools before proceeding as he did. As an aside, contempt proceedings were mentioned by the report and the opinion. That is the one tool which workers' compensation judges do not have, but one which she or he might access as discussed below. The Court accepted the Commission recommendation in this case and will deliver a reprimand publicly at the Supreme Court.
This reminds of several issues in the trial setting. First, there is a natural exuberance or eagerness to make one's point. Humans, for the most part, are willing and ready to explain what they think and why. Certainly, some are more reserved and shy; but, most are eager to say their piece. That is likely exacerbated by the fact that it takes time to get to trial. At least in part, the people at trial are there because they have not been able to reach their own resolution of the issues. There is disagreement and perhaps even frustration at the delay. And, they are all ready to be heard.
In Florida workers' compensation proceedings, and in many other trial settings, microphones have become ubiquitous. They are recording everything. Lawyers recognize that there is purpose to that. The microphones are there to record the proceedings and thus make "a record" of what was or was not said. I find myself repeatedly reminding people in hearings (1) not to put things on top of microphones, (2) not to flip papers or books next to microphones, (3) not to mistakenly think they can have a brief private conversation with their client (microphones are very sensitive), and most of all (4) I can only listen to one person at a time and microphones may not produce clear recordings if everyone speaks at once. That last one is a good reason in any trial to observe the "one-at-a-time" rule, which is certainly different from the "one-person-per-argument policy."
That said, there is no rule about who can or should speak when. That is the role of the judge. The judge should provide appropriate verbal cues for the attorneys in trial: "Ms. _____ call your first witness?" or "Mr. ______ are you ready to provide your opening statement?" When the judge is not anticipating your need or request, the way to interject depends on what is occurring at the time. To this point, there are rules and law in trial but there is also some nuance, some "art."
If someone else is speaking (lawyer or witness) when that need arises, then it is best to "object." Having said that word, or a concise combination beginning with that word, one should strive to make eye contact with the judge and await an invitation to proceed further. If it does not arrive, and one wishes to expound further, a "may I speak to that judge?" is a recommended follow-up. If this arises when someone is not already speaking, begin with the "judge, may I . . ." The scene is often important. One might gain great perspective from the appearance and posture of opponents or the judge. As an aside, that is one of the great disadvantages to telephonic appearance at hearings, depositions, and otherwise. The visual element is eliminated.
Should more than one lawyer speak to a particular issue? Should a judge enforce that objections may only be voiced by the attorney on each side that will question a particular witness? Should a judge interject to instruct attorneys in the course of trial? Those remain within the discretion of the trial judge. Though in a jury setting, it would be appropriate to do any instructing, reminding, or reinforcing privately either at side bar or with the jury retired to the jury room.
The Court was not critical of having process and procedure in the courtroom. The point may be that the trial judge should be clear about such process at the outset. If there is departure from any instruction, or if a judge elects to limit attorney participation even in the midst of trial, that should be communicated evenly, and calmly. It clearly should not ever involve "the threat of physical force" or any threat. Threats simply have no place in the trial process. A judge may have to remind participants of process, or rulings, and of enforcement, but should no more make threats than any of the other trial participants should.
There are times when attorney exuberance and excitement may evolve to anger and even aggressiveness with a witness. That too is for the trial judge to control and ameliorate. I have witnessed some fine judges interrupt an attorney with a simple question, such as "excuse me Mr. _______, but how much longer will we require for this witness?" That innocuous pause in questioning may itself be sufficient to remind an attorney of appropriate demeanor.
However, I have found that the very best answer to exuberance of witnesses or attorneys in that context is usually a short break. It is helpful for people to leave their seats, stretch, and get some water. In that brief pause, it is possible to also get back some perspective. A judge should strive to make that, a break, a "go-to" when she or he feels tempers rising, tension building, or frustration reaching a marked point. More than once, I have had an attorney return from such a break and pointedly express thanks, with a recognition to the effect of "it was becoming tense before that break."
It is important that everyone remembers that trial is a stressful time. That this is true for witnesses and attorneys is perhaps obvious. But, it is true also for judges. Judges want to have effective proceedings. They want the recording equipment to be effective (and thus have to remind lawyers not to put files on the microphones, and to speak one at a time, etc.). They are responsible for a myriad of legal rulings, keeping the case on schedule, and enforcing order. In the OJCC, they are also monitoring the equipment that is recording the hearing, or operating the video-teleconference equipment.
Attorneys should appreciate that judges, witnesses, and parties are under stress. Likewise, everyone should appreciate that lawyers are similarly under stress. Ultimately, it is the judge's role to remain calm, professional, and measured. If the judge remains calm and collected, that will encourage the same from others.
Ultimately, the best rule of trial from any perspective, is fairly simple. If everyone involved treated everyone else with the dignity, decorum, and respect with which we would want to be treated, then troubles and tribulations would be minimal. Judges, lawyers, and others should simply strive to treat others as we wish to be treated. It sounds simple. Perhaps it even sounds trite. But, it is sound advice. The judge disciplined in this case would not have wanted security to "return (him) to his table." And thus, the judge should not have exercised that option as regards someone else.
Finally, it bears noting that this judge erred in denying the motion for disqualification. The point is not whether the judge believes the asserted grounds for disqualification or believes he or she can nonetheless be fair. The point is whether the motion, on its face, is timely and legally sufficient. The truth of what is alleged in such a motion is not for the trial judge to determine. The trial judge accepts the allegations and determines if they are legally sufficient, and promptly addresses the motion. There is some exception to that if a previous disqualification has occurred in the case, that is if the trial judge is a "successor judge." See Fla.R.Jud.Admin., Rule 2.330(f) and (g).
Thus, Bailey is instructive and provides reminders for judges and lawyers alike. Ultimately, treat others as you would like to be treated and the process of litigation and trial should remain reasonably smooth and productive for the resolution of your disputes.
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