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The Florida Bar
The Florida Bar News
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December 15, 2013

I read Jan Pudlow’s “Additional funds are helping the courts move foreclosure cases” piece in the November 1 News with a sense of gloom and defeat.

While, the article lauds a high number of case dispositions with sweeping praise for case closure, what is the true price of these coveted case closures? The article does not address whether trial judges have seen a decline in bank fraud, if banks are cooperating with homeowners in modifying their mortgages and approving short sales, or whether questionable documents are now a thing of the past. No, success was gauged only by dispositions. The bigger questions are: Who is demanding that circuits and trial judges clear the backlog? What inducement (or penalty) are they dangling in front of them? And what is their ultimate authority?

Allow me to share just a few examples of what foreclosure litigation has become in Florida courts. On a single day, more than 90 foreclosure trials were set before one trial judge, though the same trial judge assured the attorneys that they would be afforded “sufficient time” to try their cases. Non-judge general magistrates have now become empowered to enter foreclosures against Floridians and have their homes sold, despite the fact they were not summoned by any electorate. In yet another circuit, court staff unilaterally communicates with plaintiff’s counsel, prompting them on what to file in order to advance the case to its conclusion. In still yet another circuit, homeowners are being denied depositions and discovery of witnesses disclosed a mere 20 days prior to summary judgment or trial. Banks that have failed to respond to counterclaims or written discovery for over 20 months are being allowed to belatedly assert defenses/objections, which had been waived as a matter of law. And these examples are all in contested foreclosure cases with attorneys on both sides. One cannot even fathom what happens to pro se litigants or defaulted parties.

Now things would be different if the cries of bank fraud were only from a zealous lobby of foreclosure defense attorneys, but the harsh reality is that the banks themselves have admitted to a widespread culture of fraud, which has taken place on a national level. So, take a moment to consider the implication of these dispositions. Does clearing the backlog solve the problem or just bury the evidence?

Charles R. Gallagher III
St. Petersburg

Let’s Not Rethink the System
I am writing in response to “Rethink the System” letter in the November 15 News by Stephen Schoeman. In his letter, Mr. Schoeman argues that our adversarial system of justice is “medieval,” “selfish,” and does not serve the public interest or truth. Rather than allow litigants to advocate their respective positions before citizen juries, Mr. Schoeman proposes a “scientific” approach whereby neutral and supposedly objective experts would engage in an enlightened pursuit of truth free from any taint of self-interest.

With all due respect, this proposal shows an astonishing lack of familiarity with human nature in general and the adversarial system in particular.

All humans are subjective and self-interested, whether they be litigants, attorneys, judges, jurors, and, yes, even scientists. To assert that scientists or other experts constitute a priestly class existing beyond the realm of human fallibility is laughable. Scientists are just as biased and self-interested as the rest of us, a fact made all the more apparent by revelations of chicanery in the environmental sciences (where toeing a particular line opens the doors to public funding).

The adversarial system was forged through centuries of experience — not confined to the Middle Ages, by the way — and is wise enough to take us as we are rather than as we should be. Through the clash of competing interests, the adversarial system allows us to pursue truth collectively even if we might fail to do so individually. A jury is well-equipped to monitor this clash precisely because jurors are ordinary people familiar with the stuff of life, which is messy and regularly features lies, distortions, and greed. Moreover, the citizen jury represents one of the last lines of defense against governmental abuse, for the jury may refuse to convict even if the full weight of the government demands punishment. In America, the people are sovereign, and it is essential that we have the last say on whether to convict or acquit.

This alternative system would rip away this fundamental right of the people and would empower a government (or government-appointed) functionary to determine our fate when life, liberty, or property are on the line. Thanks, but no thanks. I would much rather run my risks with a homespun jury — even if uninformed — than cast my lot with a smug, self-assured “expert” who feigns objectivity and whose livelihood hinges on government favor. To the extent it is argued that such “experts” need not be government employees, the government would still establish the criteria for who qualifies and thus would still cast a pall over the judicial process.

Oliver Wendell Holmes, Jr., once observed that “the life of the law is not logic, but experience.” However logical this proposal might appear, it is devoid of experience and should be roundly rejected.

Wilton H. Strickland
Missoula, MT

[Revised: 04-21-2014]