Blaming the Judge

Feb 22, 2013

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Editor’s Note: It is easy to blame the judge when you lose and take credit when you win. But if you really want to win cases, you must be more realistic than that and take ruthless inventory of your own performance in court. Expecting the judge to do right by you or your client, is like wishing. Wishing doesn’t make it so.

Case in point: Judge Joel Lazarus is being skewered for violation of due process, incompetence, and for being blatantly biased. Judge Lazarus is someone I happen to know pretty well. He has been a career public servant for many years and has presided over several celebrity cases without the kind of vitriol that is now appearing in the blogosphere over his rulings in a foreclosure case.

Just to pick out a few things, and make this a learning moment, let’s look at the accusations against him.

RIGHT TO JURY TRIAL: In equity cases there is no right to trial by jury. Where the case is mixed equity and law, there is a split of decisions although granting jury trial is rarely overturned on appeal. From what I have read about this aspect in this case, a reviewing court would affirm his ruling. Foreclosure is an “equity” case whereas collection of money or monetary damages is a case at law. I totally agree that it would be nice to get jury trials in foreclosures, but it is highly unlikely that judges will allow that unless the collection of the debt takes prominence over the enforcement of a lien.

UNAUTHORIZED PRACTICE OF LAW: In the case being used to tar and feather Lazarus, the borrower attempted to appoint an authorized representative instead of a lawyer to appear and argue the case. Florida law prohibits that and anyone who aids or abets that is subject to substantial civil and possibly criminal penalties. The Judge had no choice. If he had ruled in favor of allowing the “representative to appear” he would have been allowing the unauthorized practice of law. This would have subjected him to discipline. But that said I agree that there is a shortage of competent attorneys to represent homeowners and that the attempts to use analysts or representatives to make your case or defend your case is both allowed and proper. The Judge apparently was trying to find an easy way for the pro se litigant to make this happen by the appointment of a public defender which was later reversed because it really could not be justified. in all probability of the PD office complained that they don’t do foreclosures and the Judge was left with the only decision he could make, which was to withdraw the order appointing the PD.

“SIT DOWN AND SHUT UP:” If every Judge were to be sanctioned for getting angry in court or frustrated with attempts of pro se litigants to have their case heard in ways the rules of civil procedure do NOT allow, then we would have no judges. That sort of comment comes from the pro se litigant or representative continuing to speak after the Judge has already ruled. You can try it and sometimes it works, but more often than not, lawyer or not, you will be told to sit down and shut up. Observing the court rules and your own demeanor is more important than observing the judge’s demeanor, even if you think the judge was rude. But the converse is also true. Just because it is the Judge doesn’t mean you lay down and roll over. Judges can be wrong and frequently can be talked out of a ruling. Lawyers sometimes fail to object when the Judge asks factual questions in a non-evidential hearing or leading questions at trial.

The Judge’s politics: everyone is entitled to their own opinion and that includes the Judge. If Judge Lazarus is a tea party supporter, then the only question is whether that ideology is causing bias. I personally disagree with most of the essentials of what the Tea Party advocates believe should be the policy of our states and the nation. But I would defend to the death the right for them to have those views and express them. If bias is the concern, then questions could be asked of the judge to determine whether he is in fact biased or has prejudged a case, and if so, recuse himself.

The underlying assumption is this: homeowners need lawyers to represent them in court. The old days of pro se victories are coming to a close. Instead of blaming the judge for an unfavorable result you should prepare your own case and make sure your points are kept in issue by proper objections that are timely made and adequately explained and by avoiding tacit admissions when they agree to the authenticity of a document that probably is not authentic.