Wednesday, September 5, 2012

3d DCA Watch -- The Fonzie Syndrome!

There are many mysteries to the bunker, and not all of them revolve around the bolted down sinks or the gym/mechanical room filled with hand-me-down work out equipment (though those two are endlessly fascinating).

One in particular is the Court's policy to never admit to granting a motion for rehearing, even when the Court issues a substituted opinion clearly as a result of the request for rehearing that it has just denied.

Here is but one example:
On Appellants’ Motion for Rehearing and/or Certification

Upon consideration of the appellants’ post-opinion motion, we withdraw the opinion of June 13, 2012 and substitute the following in its place. The motion is considered as directed to the substituted opinion and is otherwise denied.

Let me get this straight -- (1) Court issues opinion; (2) Appellants file motion for rehearing; (3) Court considers motion for rehearing, withdraws the original opinion, and substitutes a second opinion in its place; and (4) Court pretends the motion for rehearing was directed to the substituted opinion that it just issued and denies the motion.

Could it be the 3d has a case of The Fonzie Syndrome?

Or maybe there's something I'm missing here?

Maybe I was wrrrrrrrrr............

Bonus opinion -- Judge Emas in special concurrence makes plea for juror public record searches in appropriate cases:
This should not be understood as advocating a blanket rule or a standing pretrial order requiring all litigants in every case to obtain a litigation history of all selected jurors before they are formally sworn to try the case. However, on a case by-case basis, a trial court has the authority to require that a party wishing to obtain certain public and easily-accessible litigation history of a prospective juror do so before the jury is sworn to try the case.

While it might be true that such a procedure will not be suitable for many cases, a trial court’s appropriate exercise of its discretion, even in this limited fashion, surely advances the proper administration of justice. Presently there is a disincentive for attorneys, on their own and in the absence of a court order, to engage in any pretrial search of a juror’s litigation history. Should an attorney conduct a litigation history search before the jurors are sworn, and discover that a juror has concealed or failed to fully reveal litigation history, that attorney would presumably be obligated to provide this information to the court and to opposing counsel. See Rules Regulating the Florida Bar 4-3.2 (Expediting Litigation); 4-3.3 (Candor Toward the Tribunal); and 4-3.4 (Fairness to opposing Party and Counsel). Moreover, how could an attorney act with “diligence” under De La Rosa if that attorney, armed with the knowledge that an as-yet-unsworn juror has concealed relevant and material information, failed to disclose that information to the court before the juror is sworn?

Faced with this Hobson’s choice, an attorney would be well advised to choose the path of inaction, conducting no search (even one which is quick, free and easy) unless and until the jury returns an adverse verdict. A process which promotes such a choice runs contrary to the ideals of a judicial system whose motto is suspended above every trial court bench in our circuit: “We who labor here seek only truth.” I believe trial courts have, and should be permitted to exercise, the discretion in the appropriate case to require quick, free and easily accessible public searches of a juror’s local litigation history before that juror is sworn to try the case.
Makes sense to me -- anybody see a problem with this?


Anonymous said...

Great post SFL!!

Anonymous said...

So the motion was deemed to have been directed at something that did not yet exist. In that case I'm sure it was insufficient, and therefore properly DENIED!

Rumpole said...

Makes perfect sense to me. We screwed up. You brought it to our attention. A court in our position cannot afford to be made to look ridiculous ( godfather reference there), therefore your motion is DENIED.

Anonymous said...

I question whether it would be unethical to not disclose that research. Isn't it work product? Is there some more specific rule I am unaware of?

Anonymous said...

not a big problem, except when your prospective juror is named Juan Rodriguez and your computer search of the docket brings back 10,000 cases with that name