It is, to say the least, an uncomfortable motion for a probate litigation law firm Florida to file. What I am speaking about? Why, it’s a motion to disqualify the probate court judge. Some estate lawyers Palm Beach refer to it as a motion to recuse. Sometimes, not all the time, you will see these motions filed in atrust lawsuit or even a Palm Beach probate administration. Many times, you see one side in awill challenge Florida or will contest Boca Raton trying to get rid of the judge. Why? Well, if beneficiaries or heirs at law or step-sons, or step-daughters, are fighting mom or dad’ssecond spouse, or there is sibling rivalry, there is a lot on the legal line, right? And, sometimes, not all the time, if one of those parties to a probate Florida loses a motion, or anevidentiary hearing, they feel, well, down. And instead of focussing on the facts, or discovery, or trial strategy, or setting depositions, they improperly get mad at the probate judge. Is this right? Is this what serious trial lawyers do? (No….)
How to Disqualify a Florida Judge
- Judges are like umpires, in that they call ’em like they see ’em. Probate courts call balls and strikes. And sometimes, just sometimes, your probate lawyer Florida doesn’t hit 1.000. Hell, I don’t know any estate litigation attorneys who do
- So, many times, an in-experienced estate lawyer, like an elder law lawyer Palm Beach who does NOT try cases, or handle trials, probate appeals Florida, or litigation, getsfrustrated
- More often, however, it’s the client who feels cheated, and they call for the removal of the judge
- This is crazy; often
- Judges are smart human beings
- Ask any experienced trust litigation lawyer, or estate lawyer, and they will tell you that the probate judges do their best to apply the law to the facts and rule. Period. What else do you want? What else can you ask for but for a judge to make the best ruling he or she can?
- But, and this is where clients get frustrated, sometimes, judges don’t see things your way
- And, clients to estate litigation Florida need to be wary of what has been described as near-sightedness, or tunnel vision, of seeing the facts, or their case, or their tortious interference lawsuit only one way
- You can’t be a litigant in a will challenge Delray Beach and see everything only one way, your way
- Judges are human; and, believe it or not, part of their job, in applying the law to the facts, is to look at all —ALL— not just “both,” sides of the issues
- Don’t be surprised if someone who is not involved in the estate lawsuit, or your family, or your revocable living trust inheritance, who is objective and impartial, and who is trained in the law of Florida wills & trusts, sees things differently
What are the rules or standards to remove a Florida Judge?
- Well, if you read this recent, December 16, 2015 Florida 3rd DCA Miami Dade appellate opinion, you may get the impression that it is pretty easy to remove a judge in Florida from hearing your estate trial or lawsuit
- Why?
- Well, look at the standards to remove a judge in a Florida lawsuit.
- Do you know how to remove a Florida judge in a trial or lawsuit?
- This was the case of the Estate of Pigna, and is known as Messianu v. Pigna
- The appeals court considered Rule 2.330(f) of the Florida Rules of Judicial Administration
- Consider the standards to remove a judge from hearing your case:
- The Florida Rules of Judicial Administration are a set of rules by the Florida Bar and the Florida Supreme Court which set for standards of conduct for judges including the probate judge in this estate case
- In making a determination on an initial motion for disqualification, the trial court must follow the requirements of rule 2.330(f) of the Florida Rules of Judicial Administration
- The trial court must determine only if the motion is legally sufficient; the trial court may not consider whether the factual assertions of the motion are true. Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978).
- Here is a copy of this Florida appeal opinion: http://www.3dca.flcourts.org/Opinions/3D15-2253.pdf
- The facts alleged in a motion seeking to disqualify a trial judge must be evaluated as true for the purposes of determining legal sufficiency. City of Hollywood v. Witt, 868 So. 2d 1214, 1217 (Fla. 4th DCA 2004).
- The trial court cannot insert its own views regarding the facts or the motivations of the parties but “must review the motion from the litigant’s perspective. . . .” Jimenez v. Ratine, 954 So. 2d 706, 708 (Fla. 2d DCA 2007)