And never utter a disparaging word about lawyers

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By HOWARD TROXLER

© St. Petersburg Times,
published July 9, 2001

It might now be a risky enterprise in this state, at least for the judges in Florida's courtrooms, to say bad things about lawyers from Miami. Because some Floridians spend a great deal of time poor-mouthing lawyers, and others the city of Miami, this news could have sweeping significance.

Let us turn our Monday morning attentions to a recent appeals court ruling in a case called Marshall vs. Bookstein, from Palm Beach County. The underlying facts of the case do not concern us. All we need to know is that Bookstein and Marshall are in court.

The presiding judge, a certain John D. Wessel, allegedly expressed anger at Marshall's attorneys during a hearing.

According to witnesses, the judge denounced the lawyers' "tactics" and described them as substandard "Miami lawyers" who "may get away with it in Miami but not up here."

Now, that kind of rhetoric is not unheard of. They probably even teach it in judge school. It is possible that no folksy, smaller-town judge has not said something like it to at least one big-city lawyer. It is possible that no big-city lawyer has not heard it from at least one small-town judge.

Nonetheless, Marshall's Miami lawyers considered the remarks especially vituperative, and gingerly asked the judge to step aside. (No smart lawyer takes such a drastic step lightly, because the NEXT person still is going to be a judge, and accusing judges of bias does not win an out-of-town lawyer popularity points.)

Marshall signed an affidavit stating the fear that he could not receive a fair trial. Marshall's lawyer and two disinterested witnesses signed affidavits attesting to the judge's "disparaging remarks about petitioners' attorney and Miami lawyers, his angry demeanor, and hostile treatment of petitioners' counsel at the (hearing)."

It should be noted here that in Florida, the person who gets to decide whether a judge should be removed from a case is ... the same judge. A judge is supposed to step aside when a party asserts any grounds that "would place a reasonably prudent person in fear of not receiving a fair and impartial trial."

Some judges have an easy-come, easy-go philosophy, and grant almost every motion. Others, quite humanly, resist any suggestion they might be biased. This is why sweet Providence, through the agencies of Congress and the Florida Legislature, created appeals courts.

After Wessel declined to step aside, the 4th District Court of Appeal, based in Palm Beach, stepped in. On June 27, the court issued what is called a "Writ of Prohibition" (a wonderful term!) against Wessel, blocking him from further presiding over the case.

I called the judge to ask about these allegations, but his very nice assistant told me he wouldn't comment. I also called the Miami lawyer in question, Guy B. Bailey Jr., and asked him about the implications of this.

Does this mean no Palm Beach judge should ever again crack wise about Miami lawyers, or for that matter, Dade City judges about Tampa lawyers, Inverness judges about Pasco County lawyers, or even judges in Two Egg about lawyers from, say, Palatka?

"It depends, I suppose, on if you do it in a vituperative way that creates a genuine concern you're not going to get a fair hearing," Bailey replied.

I asked him whether he also intended to discourage the rest of us from disparaging Miami lawyers, and he assured me that he had not. "There's no more prevention of a mere citizen from disparaging lawyers from Miami, St. Petersburg, or anywhere else," he told me, "than of my saying, for example, all newspaper writers ought to be thrown into the ocean." I said that was a fair enough arrangement.

- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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