On April 5, the Florida First District Court decided Marocco v. Russel Brabec. This is not a workers' compensation case, but bears consideration. This litigation followed a business relationship regarding some property renovation. The court describes the underlying litigation as "acrimonious," noting that it was litigated for "more than eight years." 

Judge David Langham

Following trial, the  jury awarded Marocco $511,625 and Brabec (regarding his counterclaims) $2,505.95. The trial judge, however, decided not to include all of the damages in the final judgement. In the weeks prior to the trial, "the trial judge foreshadowed her post-trial ruling at another pretrial conference by expressing her unsolicited opinion that there had been a 'major violation of [the sword and shield doctrine] in this case.'” 

After trial, with no motion therefore from the defendants, "the trial court entered what amounts to a sua sponte judgment notwithstanding the verdict" and awarded Marocco $1,125 instead of $511,625. 

The trial court explained the decision saying, “[T]he ‘sword and shield’ metaphor ... embraces the rule ‘that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the litigation.’” 

The appellate court was critical of the trial judge raising this metaphor issue for the parties, and more critical of the sua sponte decision to exclude the majority of the jury's damage award. It noted that a "trial court’s role is to adjudicate the case by ruling on the issues raised by the parties, not to litigate the case by raising issues for the parties." 

The court reminded that "trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle.” Furthermore, "Obviously, the trial judge serves as the neutral arbiter in the proceedings and must not enter the fray by giving ‘tips’ to either side.”

The court concluded that the "the trial judge interjected" the "sword and shield" metaphor "at a pretrial conference three weeks before the trial was set to begin." Though the defendants later raised that argument, "that was only after the trial judge foreshadowed her post-trial ruling at another pretrial conference by expressing her unsolicited opinion that there had been a 'major violation of [the sword and shield doctrine] in this case.'"

Furthermore, the court concluded that Marocco had not used any "shield" inappropriately to avoid discovery. On the contrary, an early motion for protective order was never ruled upon by the court. And, discovery regarding the wage claim did occur, although that was shortly before trial.

The court noted that such lateness could cause prejudice, but that the defendants did not claim that and "did not seek a continuance of the trial to obtain additional discovery or prepare for trial." There was no finding that this prejudiced the defendants.

The court reminded that actual prejudice must be demonstrated to justify the exclusion of evidence that is provided or disclosed late in the process. 

The court's decision is admirable in this instance. The role of a judge should certainly be that of umpire and not coach. See When Judges Become Opponents. 

This was illustrated recently in the process or reassigning a workers' compensation case case due to the disqualification of an assigned judge. The party seeking disqualification asserted in that case that the judge had acted inappropriately in "a. Directing the (opposing) attorney on what exhibits to file. b. Making legal arguments for the (opposing party). c. The court stated at the hearing the 1st DCA will be deciding this case. d. (when party) presented an order that was entered in a different case, for the court to review ... the court verbally refused to review it. "

The allegations are of perceived bias, but also go to the heart of the "coach versus umpire" analogy. Notably, allegations in a motion for disqualification are taken as true. The point is not whether these allegations are true, but that they reflect a party's sworn perception of the judge in that case. They reflect that a party perceived the judge to have become an advocate instead of an unbiased umpire. 

Of note, the court has encouraged for such advocacy in the past. In CVS Caremark v. Latour, the court concluded that judges "have an independent obligation to research and be familiar with the law governing the issues presented to them for resolution." When parties utterly fail to perform legal research or to provide legal support for their contentions, according to the court, the judge is then obligated to perform their job for them and do their legal research.

The court relied, for that conclusion, on section 440.29(1):

"(1) In making an investigation or inquiry or conducting a hearing, the judge of compensation claims shall not be bound by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct such hearing, in such manner as to best ascertain the rights of the parties."

Notably, this statute is permissive — "may" — not mandatory "shall." 

This statutory section is specific to Florida workers' compensation judges and those proceedings. Some may therefore note that the second sentence of this post clearly states of Marocco — "this is not a workers' compensation case" — and will contend that therefore the Marocco and Latour cases are distinguishable.

Similarly, in response to When Judges Become Opponents, about a Pennsylvania case, a Pennsylvania colleague reminded me that that state's statute has an even broader charge for the judge to investigate and to assure process in some circumstance.

I would suggest instead, that regardless of what category of judge one appears before, parties should do their own research, support their own arguments and fulfill their own responsibilities. I would suggest that the role of the adjudicator should rarely be one of "investigation or inquiry," because the parties to any case deserve an unbiased umpire.

And, when they instead perceive an advocate or coach, the result may be a motion for disqualification. For it is not necessarily bias or partiality that is necessary to support such a motion, but perhaps only well-founded subjective perception.

This is not to say that judges cannot do legal research to investigate an allegation or argument. But, certainly such may well be perceived as abandoning the role of umpire, and perceptions certainly matter. The point is that the role of judge is a fine line, a "tight-rope," one must walk, and whether one remains on that path or strays may be a matter of perception. 

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.