CAN YOU DISQUALIFY A FLORIDA JUDGE IF SHE HAS RULED AGAINST YOU BEFORE? ( no !)

Experienced   Florida   trial   lawyers, and those whose practice is limited to litigation in Florida, have all come across clients who want  a  judge  removed. What does it take to remove a Florida trial judge? Does it make sense to do that? And is it really in the client’s best interests to seek to disqualify a Florida trial judge?

FLORIDA PROBATE LITIGATION: MULTIPLE FLORIDA ACTIONS AND LEGAL PROCEEDINGS

Many times, people in Florida who are involved in    probate    litigation,    and guardianship    litigation    or    trust disputes   are involved in   multiple  Florida actions or legal proceedings.

For example, in the Florida guardianship context, there may be one proceeding to determine whether someone is   incapacitated   or   incompetent or not. There may also be a legal proceeding to determine who should be appointed the Guardian of a Florida resident’s “person” and her or his property – – and whether a guardianship is even needed if you have a  Florida    revocable    trust or a   power   of    attorney. Same thing holds true in the   Florida   estate context.

There may be ongoing   Florida   probate   litigation   regarding a dead Florida resident’s estate, while there is a separate trust    lawsuit, seeking a trust accounting and where all the money is. In addition, one of the beneficiaries of the   Florida   estate   or trust could file a civil action, a separate Florida civil lawsuit, for  tortious  interference  with  an  inheritance   or  for   fraud.

Within all these related actions, these related Florida legal proceedings, there may be motions and more motions which require the court to act and issue orders. I don’t know anyone who wins 100% of all their motions, which means you’re probably not going to win every single issue, every single day, in a Florida court. In other words, it’s quite possible that a judge rules against you or your client at some point in time.  Florida   trial   lawyers with experience and confidence know this.

YOU CAN’T DISQUALIFY A FLORIDA JUDGE JUST BECAUSE THE JUDGE RULED AGAINST YOU IN THE PAST

Miami, Florida had a recent case where a party wanted the Florida  trial  judge  to be  disqualified. She filed a motion to disqualify the trial judge. What was her basis to disqualify the trial judge? The trial judge had ruled against her in another proceeding.

The trial judge denied the motion and the party to the Florida lawsuit filed in appeal in the  appellate court for Miami, Florida.  The Third District Court of Appeals affirmed the trial judge’s ruling —  the trial judge did not need to be disqualified.

CAN A TRIAL JUDGE RULING AGAINST YOU BE GROUNDS FOR REMOVING OR DISQUALIFYING A JUDGE?

So, can a judge having ruled against you in another legal proceeding in Florida serve as grounds, or the legal basis for,   removing   that   judge – – – or disqualifying that Florida judge?

No.

As the Florida appeals court said “it is well settled law that a judge’s adverse rulings may not serve as a sufficient basis for recusal.”

DON’T WIN THE BATTLE AND LOSE THE LITIGATION WAR

Here’s a tip for anyone involved in Florida litigation — focus.

Does this make sense? Yes. It does. After all,   judges   are impartial and objective.   Experienced Florida trial judges have seen hundreds if not thousands and thousands of cases over their careers. They are used to being like umpires and calling balls and strikes. If you’re involved in multiple proceedings, I doubt that you’re going to win every single proceeding, every single motion, every single hearing.  Don’t confuse bad facts with what you think is a bad Florida judge. Remember: if you have bad facts, or bad law, you’re stuck.   A Florida Judge is objective, fair, and independent. If you believe that a Florida judge made an error of   Florida   law, or made a finding of fact that was not based on competent substantial evidence, the remedy is to file an appeal – – – not to seek the recusal, or disqualification, of the Florida trial judge.

ABUSE OF THE LEGAL SYSTEM: APPELLATE COURT ORDERS SANCTIONS

Not only did this party lose the motion to disqualify the trial judge at the trial level. Not only did this party lose the appeal. But the appellate court ordered sanctions against her. Sanctions are commands, or orders, from a court compelling a party to do something. They are usually a form of punishment and may also include monetary fines. In this case, there were a    “spate of appeals” by the party, and the appellate court found that her positions were unmeritorious and/or in violation of the appellate rules. An other trial court order found her to be a     vexatious litigant.

Our civil procedure in Florida, our judicial process, permits everybody an opportunity to be heard – – you get your time to make your case, in court, in front of an objective and impartial judge. But you can’t make a mockery out of our system. You can’t abuse the process. In this case, the appeals court ordered sanctions against the party for her meritless litigation.

FOR ATTORNEYS AND LITIGATORS

Seeking to remove a Florida trial judge is serious stuff. When you file a motion to remove a judge, you are basically saying that you don’t trust the judge – – that he or she is incapable of being    objective,    fair, and   impartial.  Wow. That’s serious stuff. Many times, in the    probate    litigation    world,    emotions are running at a fever pitch. There are issues of     money   and    family, petty jealousies, and sibling rivalry. As a probate litigator, you cannot let the client’s emotions and biases, or jealousies, take over the case. They can end up harming the client and the client’s     inheritance    case     or   probate     lawsuit.   You need to save your client from himself or herself. You need to look out for and protect the client’s best interests, which may include advising the client to absolutely not do something they want to do. Some clients have seen too much television, or read too many legal thrillers. When they lose a hearing, or motion, or hear commentary from a trial judge that they don’t like, they sometimes react in knee jerk fashion – –    remove    the    judge   !    In many cases, particularly with probate cases which involve an experienced, fair, impartial judge,   you listening to your client will most probably actually harm your client. While Florida lawyers are fiduciaries to our clients, and we must, generally, follow our client’s directions and instructions, and while we are obligated to protect our client and advance their interests, we are not necessarily required to do something that we don’t want to do. While looking out for our    client’s    best    interests,   this can include advising a client not to do something that they insist on. Why? Because it will be harmful to the client in the end —  a    litigation   setback.    I’ve been asked to file motions to remove judges which I believe were totally unfounded. And I’ve refused to do so. Those are clients I don’t mind losing.