Is a Facebook friendship really a friendship? Can judges be “friends” with attorneys on Facebook? Florida judges and legal ethicists have been debating these questions for more than four years. Florida District Courts of Appeal have now begun to offer their opinions, as Facebook friending has emerged as an issue in motions to recuse trial court judges. But definitive answers remain illusory. 

Back in 2009, the Judicial Ethics Advisory Committee of the Florida Bar thought it had resolved the issue when it released an ethics opinion weighing in on these issues. According to the JEAC’s opinion, a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her.  

But more than three afters that opinion was released, at an educational program discussing this topic, a justice of the Florida Supreme Court reminded appellate judges and lawyers that the JEAC’s opinion is not necessarily authoritative. The JEAC is an advisory committee, the justice pointed out, and the Supreme Court of Florida is the ultimate arbiter of legal and judicial ethics in Florida. 

During the same discussion, other Florida appellate court judges offered varying viewpoints about the propriety of Facebook friending. Judges are permitted to be friends with lawyers in real life, one pointed out, so why can’t they also be Facebook friends with lawyers? Another took the view that because Facebook is so public, allowing a lawyer to list a judge as his/her Facebook friend might create a forum for a lawyer to try to woo clients by giving the impression of having special influence over the judge presiding over their cases, or might cause opposing parties to fear that the judge might be biased in favor of his/her “friend.”

The 4th DCA Frowns on Facebook Friendship

Now Facebook friendship has become an issue in litigation. In September 2012, the Fourth District Court of Appeal in West Palm Beach became the first Florida appellate court to address Facebook friendship between judges and lawyers in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). Agreeing with the reasoning of the JEAC’s opinion, the 4th DCA held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend.

It may be that the prosecutor’s Facebook friendship with the judge entailed no special influence over the judge whatsoever, the 4th DCA explained. But the existence of the Facebook friendship could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial” and that fear is sufficient to require the judge’s recusal. The Supreme Court of Florida declined to hear the appeal. 

The 5th DCA Disagrees 

On January 24, 2014, in Chace v. Loisel, the Fifth District Court of Appeal in Daytona Beach became the second Florida District Court of Appeal to weigh in. Making clear that the issue is far from settled, the 5th DCA called into question the 4th DCA’s understanding of the implication of Facebook friendship:

 We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary.

To require judges to step aside from hearing cases based on Facebook friendships, the 5th DCA explained, is to misunderstand “the true nature of a Facebook friendship,” and doing so “casts a large net in an effort to catch a minnow.”

Both Courts Agree That Some Facebook Friending is Out of Bounds

Despite its criticism of Domville, the 5th DCA held that the trial court in Chace should have followed the 4th DCA’s guidance and recused herself. Why? 

For two reasons. First, at the time that the motion to recuse was made, Domville was the only decision of a Florida appellate court on the issue of Facebook friendship. When there is only one appellate court decision on an issue, every trial court in the state is required to apply the law as interpreted in that decision.  

Second, the Facebook activity of the judge in Chace was worse and more likely to result in bias than merely being Facebook friends with one of the parties’ lawyers. The judge in Chace actually sent a Facebook friend request to one of the parties, i.e., Ms. Chace, while her divorce litigation was pending before the judge. On her attorney’s advice, Ms. Chace didn’t accept the request, and feared the judge might hold it against her.

The 5th DCA found the judge’s conduct of reaching out to a litigant with a case pending before her more troubling than a mere Facebook friendship between a judge and an attorney. It regarded Ms. Chace’s fear of bias as well founded, and ordered the judge to recuse herself.

An Open Question

The reality is that most judges are former litigators, and most former litigators have friends — on Facebook and in real life — who are litigators. But it is also a reality that even without Facebook friendships, many litigants are suspicious of the relationships between judges and lawyers.

It is unlikely that judges will ever be banned from having real life friendships with lawyers. At least in the short term, judges in Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties cannot be Facebook friends with lawyers appearing before them. It remains an open question whether they, and judges throughout the state, will be able to maintain Facebook friendships with lawyers in the long run.   

In the past few years, the strangest things have started appearing in appellate decisions: images. That has been seen as so revolutionary that it has been widely covered in the legal press, with 7th Circuit opinions authored by Judge Richard Posner (as is often the case) drawing the most attention. The question is: why are judges now inserting images into their opinions?

The answer may be that astute judges are responding to the changing environment in which their opinions are being read. Appellate court opinions have been accessible online for years, and they are now more commonly read on “screens” — computers, iPads/tablets, and smartphones — than in books. And studies have shown that we read differently when looking at a screen than when looking at printed text on paper.

For example, here’s how scientists say our eyes track the data on a webpage:

http://www.usability.gov/images/fpattern.JPG

Notice the concentration of red on the left hand border of the page created by the eye searching down the page for its structure. Note also how the eye tends to skip around.

Astute legal writers — especially appellate lawyers — would be wise to take note of how different the reading experience is on a screen, and to take it into account when drafting court submissions. That point was persuasively made during a presentation at the Florida Conference of District Court of Appeal Judges last fall (which I and other members of the Florida Bar’s Appellate Practice Section were fortunate enough to attend).

Judges (and their clerks) are increasingly reading appellate briefs and other court submissions on computer screens, and when travelling, on iPads, Kindles and other e-readers, or on smartphones. (An informal survey during another presentation at the conference revealed Florida appellate judges to be tech-savvy and partial to iPhones and iPads, although Android phones were also represented).

The trend toward screen-reading will only increase now that e-filing is replacing paper filing.

In order for an appellate brief or any piece of legal writing to be persuasive, it must command the reader’s attention. And to get and keep a reader’s attention when he or she is reading on a screen, attorneys need to adopt the format of their documents to fit the environment.

How? In much the same way as one makes a webpage easy to read and engaging. Here are some suggestions:

  • Add spacing — Text is easier to read when it is surrounded by white space. Increase margins.  Large block paragraphs extending from margin to margin are a relic of book reading. They are difficult to digest when read on a screen, particularly when read on a Kindle or similar e-reader.
  • Shorten the paragraphs. Not only do shorter paragraphs make the document more palatable to the eye (and increase white space), but they also account for the attention span issues that have been engendered by the digital age.
  • Use headings more liberally. Effective headings are alot like soundbites — they grab the reader’s attention and drive home the point quickly before that attention is lost. Hopefully, they also encourage the reader to continue to read and pay attention.
  • Insert document bookmarks. If you’ve opened a .pdf of a recent Florida Supreme Court opinion, you may have noticed a menu bar on the left hand side mapping out the sections of the opinion. Document bookmarks help the reader to get a feel for the overall structure of the document. They also help the reader to easily navigate between sections and arguments. When the reader must scroll up and down the screen to find sections, a traditional table of contents is a much less helpful roadmap than a bookmarks bar, where the reader can click right on the section he or she is looking for.

And finally there’s the most radical idea: illustration with images. This practice is the most obvious concession to the effect the internet and it remains relatively unorthodox and somewhat controversial. So a fair amount of tact and judgment is needed.

But when used appropriately, tactfully, and sparingly, images can be highly effective. (If the picture is worth 1000 words, it can also help to make the brief shorter, which judges always appreciate). If nothing else, images command attention. Just ask Judge Posner. 

The Florida Supreme Court justices and District Court of Appeal judges who were up for retention votes this year had a great day yesterday. Congratulations go out to all of the retained justices and appellate judges:

Florida Supreme Court:

Justice R. Fred Lewis

Justice Barbara J. Pariente

Justice Peggy A. Quince

Despite facing organized opposition that was unprecedented in the history of retention elections in Florida, all three justices were retained by sizeable margins. As I wrote in my previous post, I view this as a victory for Florida’s non-partisan and generally non-political, merit-based system of selecting and retaining Supreme Court justices and appellate judges. A ballot initiative to give the state senate more power over appointments to the Supreme Court, via proposed Amendment Number 5, also failed.

From what I’ve heard, there were considerably fewer undervotes (ballots on which voters marked preferences in other races but left the merit retention questions blank) than in previous retention elections. So perhaps the contested retention elections had a subsidiary benefit — helping voters become more aware of, and educated about, our Supreme Court justices. Credit for that goes to the many attorneys, laypersons, and legal organizations who worked to educate voters about the retention elections.  

First District Court of Appeal:

Judge Simone Marstiller

Judge Stephanie W. Ray

Judge Ronald V. Swanson

Judge Bradford L. Thomas

Second District Court of Appeal:

Judge Anthony K. Black

Judge Darryl C. Casanueva

Judge Charles A. Davis, Jr.

Judge Edward C. LaRose

Third District Court of Appeal:

Judge Angel A. Cortinas

Judge Kevin Emas

Judge Ivan F. Fernandez

Judge Leslie B. Rothenberg

Judge Richard J. Suarez

Fourth District Court of Appeal:

Judge Burton C. Conner

Judge Carole Y. Taylor

Almost a quarter of DCA judges statewide were on the ballot, including 4 of the 1st DCA’s 15 judges, 4 of the 2nd DCA’s 14 judges, 5 of the 3rd DCA’s 10 judges, 2 of the 4th DCA’s 12 judges, and none of the 5th DCA’s 10 judges. All were easily retained.

Yes votes for retaining each of the 2nd DCA, 3rd DCA, and 4th DCA judges exceeded 72%. The 1st DCA judges were also retained by comfortable margins, although they received slightly less support, with yes vote percentages ranging from a little less than 62% to a little more than 66%. I’m not aware of there being organized opposition to retention of any of the DCA judges, or what accounts for the slightly lower numbers across the board in the 1st DCA retention elections.

Congratulations to all. I look forward to practicing before you in the coming years.

I’m voting “yes” to retain the 3 justices of the Florida Supreme Court who are up for a retention vote this year — and I urge the readers of this blog to do the same. That may seem out of line with the general non-political/non-partisan tone of this blog. It’s not. Let me explain.

Why am I supporting retention of these justices?

First, because I believe that Justice Lewis, Justice Pariente, and Justice Quince, like their colleagues, are good, impartial jurists that have served our state well and will continue to do so. I read every opinion that the Florida Supreme Court releases. All of these justices have authored and joined decisions I agree with, and all have authored and joined decisions I disagree with. What that tells me is NOT that they’re right sometimes (when I agree with them) and wrong sometimes (when I disagree with them) but that they’re fair all of the time. Having practiced law in other states, I am of the firm opinion that Florida is blessed to have such fair and qualified justices sitting on our highest court.

But it’s not just about these particular justices themselves. I’m also voting to retain these justices because in doing so, I’m voting for the continuation of the appellate judge selection process put in place decades ago in our state, which has worked better than any other system I know of.

In that selection process, applicants for judicial vacancies are screened by a judicial nominating commission made up of lawyers and laypersons from all sides of the aisle. They select a handful of candidates that are most qualified on the basis of merit — experience, education, community involvement, temperament, etc. — not politics. The governor then selects who will serve from that handful of candidates. After the appointee has served for a period of time, Florida voters get to vote in retention elections to decide whether the justice or appellate judge should continue to serve.

Retention elections are supposed to be, and have historically been, non-partisan. Judges and justices are required to run on a non-partisan basis, not as a candidate of any party. I believe that is the way it should be.

Selecting and retaining judges and justices on the basis of merit is the best way to build a smart, well-qualified judiciary. Selecting and retaining judges and justices without consideration of political parties or interests is the best way to build a fair judiciary.

And it is the best way to ensure that judges and justices are free to decide cases independently, without fear of retribution from powerful politicians. It seems to me that the organized opposition to retention this year boils down to that: some powerful politicians didn’t like certain Supreme Court rulings against them. They’d rather have their own people on the court. 

Florida used to have partisan judicial elections. It didn’t work well, elevating political savvy over impartiality and merit. When enough scandals resulted, our electorate opted for a non-partisan/non-political system. It works well.

By voting to retain Supreme Court Justices who are qualified and fair, I’ll be voting in favor of a judiciary that espouses those attributes. And I’ll be rejecting an attempt to return our state to the days when the selection of appellate judges and justices was driven by partisan politics.