SOUNDING FOLLIES REDUX.

Well, we have the same problem again.

Careful and long time readers of the blog remember when readers complained about Judge Reyes’ putative policy of not allowing continuances at sounding. Out of nowhere, Judge Larry Schwartz jumped into the fray agreeing with the readers (but not criticizing his colleague). To his credit, Judge Reyes listened to the complaints and agreed to change his policy.

Now word reaches us that Circuit Judge Tunis has adopted a similar policy. The request for continuance must be in writing and filed five days before the sounding. We like Judge Tunis. We respect Judge Tunis. Judge Tunis is at the top of the list of any judge we would want hearing a case.

But she is wrong. And here is why:

It is not easy being a private attorney these days.
There are more cases, but there are also more lawyers.

Only a very few attorneys are at the pinnacle of their profession and able to pick and choose their cases. For the rest of us, the business of law is a careful balance of quantity versus quality. We need to take on more cases for less money. Much like doctors under the thumb of an HMO, private attorneys are constantly struggling with the problem of having to handle more cases with less time available to devote to each case and client. It is an unfortunate result of the economic climate.

With time at a premium, the last thing we need to do is remember that of the twenty some odd (no offense intended) Circuit Judges, one requires a motion in writing five days before the sounding.

Our client’s face an ever increasing array of minimum mandatory sentences. More cases require bringing the case to trial or to the verge of trial before clearer heads (read: reasonable prosecutors) prevail.

If you handle federal cases, even when you have a client that can afford your services, you have to watch out who pays you and how, or you can end up on the wrong side of the jury box.

If you take court appointed work, you have to now deal with a bureaucracy in Tallahassee that is so complex and incompetent that a secretary recently admitted to us that the person who handles the help desk gets more calls per day than the rest of the office combined. You need written authority to do just about anything outside of getting your client a cup of water at trial.

The bottom line is that the average criminal practitioner is under more pressure to defend clients facing more jail time, and does not have the time to spend writing motions for continuances and making sure they get filed on time.
Yes the motion takes a minute or two on a computer. But the real problem is remembering that cases in that division require a five day notice before the sounding.

Many of us spend our days putting out fires when not in trial. There are a myriad of reasons and problems that crop up every day that keep lawyers out of the office. If that day happens to be the 6th day before the sounding, then you have missed the deadline and are out of luck.


Apparently Judge Tunis’s division has a problem with old cases. This was a problem she did not cause, as the backlog occurred before she arrived. Making private attorneys do grunt work for no reason other than to frustrate their ability to continue a case is not the solution.

Judge Pinero has a low case load and he does not require motions prior to the sounding.
Judge Pinero has a realistic view of the criminal justice system and he can separate the wheat from the chaff. He knows which cases are worth extra time and attention and which cases should be resolved quickly.

You want to lower your case load? Tell prosecutors to stop making unreasonable pleas. Don’t accept a prosecutor stating that their supervisor told them to try the case. Get the supervisor’s butt in court and make them sit there for the three days it takes to try the possession of cocaine or resisting with violence case.

How about these ideas:

Set a discovery schedule for each first degree felony or above, and require monthly reports to the court; Judges should intervene with reasonable plea offers when prosecutors offer five years on a first offense third degree felony “because the victim wants the max”; deny continuances at the sounding for legal and reasonable reasons, not just because an attorney was otherwise busy and missed an arbitrary deadline; refuse to calendar discovery motions or other motions that can and should be worked out between the attorneys when the motion does not include the required affirmation stating the actions taken by counsel to resolve the issue prior to filling the motion; require the police departments to pay the costs of the court reporter, witness fee, and service of process for every deposition an officer misses without good cause.

In short, if you want lawyers to be more lawyerly, then set rules designed to achieve those goals, not arbitrary rules designed to make the practice of law more difficult for everyone.

As we said: we think Judge Tunis is one of the best and brightest new Judges.
But this policy is wrong wrong wrong.

Or to quote a wise Rabbi from Brooklyn we once knew: “That dog won’t hunt.”

See You In Court.