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July 1, 2021 Letters

Letters

Second Amendment

Lawyers must become more active in advocating for safe and sensible gun laws. Mass shootings are America’s present-day deadly and heartbreaking pandemic.

Gun enthusiast members should absolutely lead the charge. If member enthusiasts want to retain their ownership privileges, please tell the rest of us what you want these laws to say. It is you who have the inherent knowledge that can successfully shape future gun laws that could keep this country safer from senseless violence. The rest of us cannot possibly fathom or articulate legislation that would be agreeable to you.

Because of your unique insight, gun owning Bar members have a moral and legal obligation to step up to the plate now or you surely risk the privileges clung to so tenaciously.

If those members among us, who stridently defend the Second Amendment fail to equally spend their time advocating for new laws and writing the paths out of these national tragedies, the rest of us cannot and will not wait much longer.

Sarasota

Court Packing?

I read with amusement — and horror — Blaise Trettis’ June Letter to the Editor titled “Court Packing.” It seems Mr. Trettis feels that any proposed expansion of the U.S. Supreme Court is political in nature and he wants The Florida Bar to speak out against any such proposal.

If the Bar does so, it does not speak for me, it probably does not speak for many other Bar members, and I strongly suggest the Bar stay out of federal judicial system issues.

The current SCOTUS has been comprised of nine justices since 1869 — 152 years. And since then its caseload has increased multifold, by the thousands. In 1950, 1,195 cases were filed in the court; in 1975, 3,940 cases were filed. Today, the average number of filings with SCOTUS number between 7,000 and 8,000 per term. It grants plenary review of about 80 cases per term and disposes of another 100 cases or so without plenary review — a tiny fraction of those filed. SCOTUS’ own website states that it currently receives a “substantially larger volume of cases than presented in the last Century.”

It seems to me that SCOTUS itself is crying out for help.

A proposal to increase the Court to 13 members coincides with the number of circuit courts of appeal, which would assign each justice one circuit from which to entertain motions and other legal filings. Currently, at least four justices have to address matters filed in two circuits. Let’s give them a break and even out the caseload. Let’s give them the ability to accept more cases. We who have filed jurisdictional briefs before SCOTUS (and I have) know firsthand that the overwhelming majority of them are rejected. It’s hard to believe that so many cases are unworthy of SCOTUS review. After all, we’re good lawyers, aren’t we? But being short-handed, I am sure they have to carefully pick and choose their caseload.

Let me suggest what court packing really looks like, in its current iteration: A president has a SCOTUS vacancy and the constitutional obligation to fill the seat with a new justice. The Senate refuses to even meet with the candidate or schedule the matter for a floor vote — for nearly a year, with the Senate leader claiming the president should not be allowed to meet his constitutional duty during his last year in office. Then, a new president is sworn in and, lo and behold, not only does the new guy have approved two new SCOTUS justices — one in his last month in office — but he also has 230 federal judges approved in quick succession (at the expense of other important work the Senate should have been doing, like addressing the 400+ bills sitting on the leader’s desk). Worse yet, many of these candidates were deemed unqualified by the ABA. They were considered hard-right ideologues from the Federalist Society “farm team” not fit to serve, and certainly without the legal background and experience necessary to handle federal court matters. And now, with the current newest guy in the White House, in four-and-a-half months only three of his candidates have been approved while hundreds of vacancies exist on the bench. All because a super-minority in the Senate has abused its powers with an unconstitutional “rule” that thwarts government business from getting done. That’s what I call court packing.

And that’s the national issue The Florida Bar should stay out of, especially since our members have differing views on the matter.

Melville, NY

Courts

All court proceedings should now be able to be attended in person.

Orlando

Going Forward

I write to provide a different perspective on the benefits of virtual hearings than that presented in the June Bar News online column, “A balance between in-person and virtual court proceedings should be established,” by Edward R. Blumberg and others.

For a year or more, every status conference, motion hearing, mediation, and multi-day trial in which I have participated has been conducted either just by telephone or via Zoom. Every one of them went off without a hitch (other than the first few minutes of Zoom hearings when everybody is getting online, or where a judge needed help to handle the Zoom controls).

I practice mostly probate and family law in North Central Florida. Not the most affluent part of the state. Here are three things I want to mention:

1) It was easier to get doctors to appear as witnesses. They could schedule an appearance at a time certain, schedule patients around that, and get right back to their schedule immediately after their appearance. So, for “regular people,” it was possible to present expert testimony they would not have otherwise been able to present.

2) The parties themselves and lay witnesses did not have to take an entire day off from work for an appearance in court. Witnesses sometimes have to sit out in a courtroom hallway for hours waiting to be called to testify. This is especially tough for non-family witnesses, such as teachers, babysitters, day care directors, friends, and neighbors. Their information is often important to the court, especially in matters related to children. But to ask a public school teacher to take a day off from work to testify in one child’s parents’ divorce impacts not just that teacher, but all the other students in the teacher’s class. And it goes without saying that a virtual hearing sometimes makes it possible to have important out of town witnesses testify who might not otherwise be able to travel to court.

3) The other thing I would mention is that evidence rules are the same whether your hearing or trial is in a courtroom or on Zoom. Good questioning is good questioning whether in person or on a computer monitor. Objections can be made and ruled upon virtually, as well as in person. Handling documentary evidence does take a little preplanning, and understanding how the judge prefers to handle it. Marking it ahead of time, delivering hard copies to the court ahead of time, learning how to “share screen” in Zoom — these are trial skills and techniques that translate well between physical and virtual courtroom.

My view is that for many probate, trust, guardianship, and family law matters, Zoom hearings are quite cost effective and can result in better evidence being provided to the court. These virtual hearings can allow full participation by lower income parties, who can afford to put on a better case, which should lead to better (more thorough) outcomes.

Gainesville

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