Roy’s Trial Law “TIPS”–Tip No. 2:
Don’t Tell the Judge What Happened Outside the Courtroom
(He or She is Not Supposed to Believe You)
by Roy D. Wasson
Board Certified in Appellate Practice
Fellow of the Academy of Florida Trial Lawyers
It happens every day in every courthouse in Florida. You have done it a dozen times at least: You show up at a motion calendar or special appointment hearing and launch into the other side for his or her transgressions. “Judge, they did not tell me the expert’s depo was cancelled until after my plane landed in Zanzibar, so I need my airfare and fees paid.”
Sometimes the entire case can be won or lost on things which happened outside the courtroom, but which have little or nothing to do with the core facts of the case. For example, to avoid having a defense motion for summary judgment granted based on your failure to deny Requests for Admission, you tell the judge: “I served the responses but the letter carrier ‘went postal’ and the swat team detonated the mail bag to take her out.”
Don’t do that! You are improperly attempting to establish matters of contested fact with unsworn “lawyer talk,” and if the judge rules against you, the appellate court will tell you that you needed to call a witness and swear him or her in to testify. (I am telling you first, so that does not happen.)
One of the leading cases on this issue is Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838 (Fla. 1994). That was a case in which the Appellant filed a motion for relief from a default judgment alleging that the default was entered as the result of fraud. The appellate decision explains what the attorney did wrong in failing to offer sworn testimony to establish the fraud:
At the hearing on the motion, Blimpie failed to offer any evidence or testimony supporting its allegations of fraud. Instead, its attorney only presented argument interspersed with unsworn representations of fact. The attorney for Palms Plaza brought this shortcoming to the attention of the trial court by noting the absence of any factual basis to which he could respond.
We conclude that the trial court was correct in denying the motion. As was held in Yu v. Weaver, 364 So. 2d 539, 540 (Fla. 4th DCA 1978), such an “unsworn motion without more did not warrant vacating a prior final judgment which on its face appeared proper.” Moreover, this proof deficiency was not cured by the factual representations made by Blimpie’s attorney in the motion and at the hearing. We have held that, in the absence of a stipulation, a trial court cannot make a factual determination based on an attorney’s unsworn statements. State v. Brugman, 588 So. 2d 279 (Fla. 2d DCA 1991). A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney. Schneider v. Currey, 584 So. 2d 86 (Fla. 2d DCA 1991). See also Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982) (“If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”)
Id. at 839 (emphasis added).
An affidavit will sometimes be acceptable to establish factual matters of this sort. See, e.g., Schauer v. Coleman, 639 So. 2d 637 (Fla. 2d DCA 1994)(fact establishing excusable neglect sufficient to set aside default judgment “must be set forth in a sworn document”). Be careful, however, because affidavits are inadmissible hearsay in many proceedings, which is a topic for another Trial Law TIP. In the situation where an affidavit is properly admissible to establish a matter of contested fact, you should try to get one from a secretary or your client, or someone other than counsel of record to avoid the “lawyer-as-witness” problem. Or you can use Requests for Admission (if you have time) or a stipulation from the defense attorney that certain facts occurred. But don’t just do things the way you have always done them before and make unsworn statements of fact at the hearing. (Easy for me to say that you should change overnight, huh?)
On the other hand (as appellate lawyers are wont to say to hedge their bets in giving advice), don’t sit blithely silent if you adversary tries to win a fact-based hearing by making unsworn representations of excusable neglect (etc.) to the judge. Object, object, object, or the defect may be waived. For example, in Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005), the issue was when a party came in possession of certain documents that should have been produced. There was no evidence to support the proposition that the documents had previously been disclosed, but the respondents’ attorney made the unsworn representation to that effect at the hearing. Upon appellate review, the court held as follows:
Unsworn statements by the Respondents’ attorney at the hearing were the sole evidence that Hugh’s estate-planning attorney had previously disclosed the documents in Delaware. However, counsel for the Petitioners did not object. Thus, on review, the Petitioners cannot complain about the trial court’s reliance on such statements to find that the requested discovery was relevant.
Id. at 338.
If you don’t want to interrupt your opponent’s unsworn statements with a formal objection, at least argue that there is “no evidence to support [your opponent’s] position,” to preserve the issue for appeal.
This discussion leads me to a related issue, which I will mention briefly. Don’t just show documents to the judge at a hearing. Move them into evidence with exhibit numbers, etc., like you were in a jury trial. Many an appeal has been lost when a critical document was viewed at a hearing, but not identified and placed into the record as evidence. I know it feels odd to be so formal at a motion hearing, but you can blame me if you want to.
Objections are rarely lodged when counsel make unsworn representations of fact at a hearing, so it may be hard to get used to the idea of presenting sworn testimony to establish facts when no jury is present. Further, judges may not initially realize that they need to sustain your objections to your opponent’s unsworn representations. If at first you do not succeed in asserting such objections, all you can do is . . .