Fernandez v. Guardianship of Fernandez, — So.3d —-, 2010 WL 2178831 (Fla. 3d DCA Jun 02, 2010)
Contested guardianship proceedings are bench trials, which means the same person is both your fact finder and lawgiver: the judge. As explained in When the Judge Is the Jury, there are real advantages to bench trials:
“And one of the biggest advantages over the traditional courtroom is that the lawyers get to ‘read the jury’ all through the case. And since the judge can—and often will—ask questions, you’re always aware of what’s on the jury’s mind,” said Standwell.”
I think most practicing lawyers have mixed feelings about questions from the bench. When the questions make clear the judge is leaning your way, you love ’em! When the opposite is true, you know it’s going to be a bad day. Love ’em or hate ’em, questions from the bench are a fact of life and explicitly authorized under F.S. 90.615.
But when does questioning from the bench go too far? The answer to that question depends in large part on the facts and circumstances of your particular case, so hard and fast rules are difficult to come by. But most of us know it when we see it . . . and so does the 3d DCA. Here are the facts the appellate court was confronted with in the linked-to contested guardianship case:
[The trial court] decided that the hearing would proceed more expeditiously if the trial court conducted the examination of witnesses instead of allowing counsel to do so. The trial court swore the witnesses and denied the daughter’s request to invoke the rule of exclusion of witnesses. The court called and questioned the witnesses, affording almost no opportunity for examination or cross-examination by the parties. There were no opening or closing statements.
According to the 3d DCA, this was too much. Questioning from the bench is proper, but if it’s done to the exclusion of everyone else in the room, the parties aren’t getting their fair day in court. Here’s how the 3d DCA put it:
Respectfully, this was not proper procedure. The Florida Probate Rules provide that in adversary proceedings, “the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern….” Fla. Prob. R. 5.025(d)(2). See generally In re Guardianship of King, 862 So.2d 869, 870-71 (Fla. 2d DCA 2003); The Florida Bar, Litigation Under Florida Probate Code § 1.6 (7th ed.2009); 28 Fla. Jur.2d Guardian and Ward, § 35 (updated Feb. 2010). “The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.” § 744.331(5)(a), Fla. Stat. (2008).
As this was an evidentiary hearing in a contested proceeding, the matter should have been tried as is customary in a bench trial. The parties should have been given an opportunity to make opening and closing statements. Each party should have been given an opportunity to present evidence, call and question witnesses, and cross-examine the other side’s witnesses. When the guardian ad litem gave her report, cross-examination by the parties should have been allowed.
At the start of the hearing, the daughter invoked the rule of exclusion of witnesses [under F.S. 90.616]. The trial court denied that request. The request should have been granted.
First: contested guardianship proceedings are treated like any other kind of bench trial under Florida law, and need to be adjudicated accordingly. The parties are entitled to all of the due-process rights any litigant is entitled to in a Florida court room, including at a bare minimum:
- The opportunity to make opening and closing statements.
- The opportunity to present evidence, call and question witnesses, and cross-examine the other side’s witnesses.
- The opportunity to cross examine the guardian ad litem.
- The exclusion of witnesses from the courtroom in accordance with F.S. 90.616.
Second: lawyers on the wrong end of an overactive judge have to object. To put it mildly, this kind of objection needs to be handled “delicately.” So what’s a lawyer to do? The Winter 2009 edition of the ABA’s Litigation magazine has an excellent article by Houston, Texas litigator Martin J. Siegel that speaks directly to this question. Entitled When Judges Want to Get in the Game: Lessons from Another Court, Mr. Siegel’s article is thoughtful, well written, and well researched. Here’s an excerpt:
“[L]awyers on the wrong end of the overactive judge have to object. As with questions from opposing counsel, failure to object to improper examination from the bench will waive the error. Ditto with remarks to the jury. On appeal, if no objection was made, review will be for plain error, and only those errors resulting in an unfair trial will merit reversal. Courts recognize that objecting to the judge’s questions and comments can be touchy and difficult, but still require counsel to give it a go. If the judge wishes to examine witnesses at any length, there is precedent for seeking a sidebar out of the hearing of the jury or a recess and asking the court to inform counsel of the desired line of questioning so that the examination will come from the lawyers and not carry the imprimatur of the court.
To the extent possible, lawyers should also make sure the objectionable conduct is fully on the record, even the little things that will add flavor to the appeal but may not always come through on the cold page, like the judge’s demeanor, tone, or volume. For example, in one case, the judge’s repeated pointing to the defendant’s lawyer in an effort to prompt him to object made it into the record because the plaintiff’s lawyer, finally exasperated with the court’s unusual theatrics, said, ‘Your Honor, I haven’t even finished my question, and you’re pointing to the defense counsel to object to my question.’ Nationwide Mutual, 174 F.3d at 808.”