Tuesday, September 24, 2013


(We update our thoughts on Will Thomas and race and sex below.) 

His legacy as a giant among the Miami legal community will last decades beyond the dates on his opinions. He could be brutal in oral argument, scoffing at arguments he disagreed with, asking questions that made attorneys tremble at the podium, and occasionally turning his back when he had enough of the tom-foolery. Love him or hate him (and many attorneys over the course of a career felt both feelings, often intensely) Alan Schwartz leaves a legacy as one of the great appellate judges of our time. 

Here is the 3rd DCA's announcement of Judge Schwartz's retirement: 

It is with equal parts gratitude and regret that the Court announces the retirement of Alan R. Schwartz as a senior judge of the Third District Court of Appeal when his current term of senior service ends on September 30, 2013.
Judge Schwartz has served ably and with great distinction on this Court for more than thirty-five years, twenty-three of them as the Chief Judge of this Court. During his tenure on the court, he has authored more than 2000 opinions.
After his retirement as an active judge in 2004, Judge Schwartz continued to serve as a senior judge, both at the Third District Court of Appeal and on the Circuit Court of the Eleventh Judicial Circuit in Miami-Dade County. He has served as a visiting judge in every District Court of Appeal in Florida. Judge Schwartz’ devotion to this Court, to the rule of law, and to the highest principles of the judicial branch, cannot be questioned.
The Judges at the Third District Court of Appeal will dearly miss the daily guidance, advice and humor of our friend and colleague. He has taught us much and his lasting legacy on this Court will never be forgotten. 

Personally, after a very rough start before Judge Schwartz decades ago, we ended up with a winning record in the cases we had before him. But beyond that, we ended up, we think,  with a measure of respect, which we would sometimes see in the glint of his eyes, as he recognized us either at the 3rd DCA or when he would handle a calendar at the REGJB. And to think that at one moment our advocacy on a point of law had earned the respect of Judge Schwartz, was as big an honor that we as a litigator could receive from the bench. 

Godspeed Judge Schwartz. 

JUDGE THOMAS (continued)

Senator Rubio stomped on Judge Will Thomas's reputation recently. Herald columnist Fred Grimm stomped on Senator Rubio right back, picking up the mantle and defending Judge Will Thomas. Grimm's column  is here. 

The NY Times reports on the contretemps here. 

Here's a thought that keeps occurring to us. When Judges Thornton and Bloom had their applications to the District Court forwarded to the White House, no one said that "white, straight, jewish judges" made the cut from the JNC.  (FYI- We have no idea of Judge Thornton's religion. He could be a Druid for all we know, and that's the point.) They were just two judges. Shouldn't Will Thomas get the same respect? Vote him up or down because he works lawyers hard, is opinionated, has courage, and is sometimes a bit of a loud mouth. But his race and his private sexual choices really don't matter at all. Or aren't we as evolved in 2013 that we thought we were? 

See You In Court. 


Anonymous said...

He is probably the most brilliant judge to sit on the 3d DCA ever. But with brilliance comes arrogance. I remember I had a case where the state appealed a trial judge's granting a sworn motion to dismiss against my client on a somewhat complicated financial case. The appeal was a no brainer for me. The AG showed up late and apologized to Schwartz after the argument. His response? "You would have been better off not showing up at all." Give the man his due, at least you knew where he stood.

Anonymous said...

There was no other judge on the 3rd DCA who was as intellectually dishonest as Alan Schwartz. Glad to see him go.

Anonymous said...

Anyone reading this blog who supports Judge Thomas should pen a letter to Rubio - and copy the entire Senate Judiciary Committee -calling him out on this thinly veiled and shameless political ploy.

South Florida Lawyers said...

Well-said as to both judges Rump.

My 3d DCA Watch just got a lot harder!

Anonymous said...

Speedy trial is back!

Juan Gonzalez said...

There is no doubt that Schwartz is the most infuential Jurist in the history of the 3rd and consequently the counties that comprise the district. A prolific writer and tireless worker, he seemed to write every opinion the 3rd issued in the 80s. I miss the logic and efficiency, every sworn motion or joa I ever prevailed on featured his opinions. His only fault is not suffering fools gladly. It was a priviledge appearing before him in the trial court and conversing with him over coffee in the morning in the court house cafeteria. He deserves a monument.

Anonymous said...

Good riddance.

Anonymous said...

I cannot say that I am sorry to see Alan quit. Although he is brilliant, his personal animosity towards some would overshadow his intellect.

His opinion in the Royer case made his reputation and, but for his lack of interpersonal skills, he would have made a fine Florida Supreme Court Justice.

You always knew you were in trouble when he would come into the lawyer's lounge in the morning to get coffee, and he would ignore you and talk to your opponent, even though a week before you were sharing drinks or a cup of coffee with him somewhere else.

Lately his opinions have been a little inconsistent and less well reasoned. It was time to quit. All in all, I wish him well, but I will not miss his difficult nature.

Anonymous said...

Nephew of a priest, Judge Thornton is a devout Irish Catholic, son of Notre Dame and a Golden Domer to the end. Right Chief Judge Moreno, former Chief Judge Zlock??

Anonymous said...

1. good riddance; judges who lack civility and temperment undermine the Bar's entire professionalism and civility mantras. Schwartz was the WORST offender of this. He had many strengths and accomplishments, all of which will be overshadowed by the fact he was a napoleonic asshole to lots of people who appeared before him. Quite a shame.
2. 11:25 -- good idea. Rubio's shamelessness is so disgusting. He could not hold a candle to Thomas; he is basically Jonah from the veep. Shameful to preclude Judge Thomas a fair hearing.

Anonymous said...

Temperment is more important than qualification. No matter how exceptionally qualfied any person may be, if they were a "jerk " about it, then there can be no toleration.

For the life of me, I cannot fathom how and why a person can be rude, especially within a profession. I know that judges lose their patience with inabilies to meettheir standard but, if that is the case, they have the responsibility to get others to their heights.

This giving tribute is a wrongful form of elitism, for people "in the club" since being a brilliant jurist can never eclipse the main reason for a person to be a judge...to be fair.

Anonymous said...

All most lawyers want is that a judge who is nice, fair and smart. Schwartz was smart and nothing else. Seemed to take a perverse pleasure in embarrassing those who practiced before him.

I had only one time in front of him, but he displayed the same lack of interpersonal skills that others before me had warned about. Even the other attorney was appalled by his arrogance. You know you have no personality when even the victorious lawyer says you're an ass.

Anonymous said...

4:56:00 PM Oh, Oh! I think (non)american MINORITY is back!

Anonymous said...

Schwartz had great potential and made some important decisions. It's all overshadowed by his incredible arrogance. How many people did he humiliate or embarrass unnecessarily just because he could? I'll never forget how he used to turn his back on law students in moot court competitions because he didn't like their arguments. His long tenure is as much a testament to the JQC's inability or unwillingness to discipline judges for abusing litigants as much as arrogance.


PS----I do not agree that temperament is more important than qualification. No matter how nice a person is, they don't belong on the bench if they're not qualified. Intelligence, skill, knowledge, and temperament all are important. And, with so many people who excel in all areas, there's no reason we have to choose one who meets only one of these criteria.

Anonymous said...

Can we do a joint petition or letter to Rubio?

Anonymous said...

terrible judge. i once witnessed him not allow a defense attorney to reserve opening statement. dude had shortmans complex. genius he was not. hater he was..

as for judge thomas, he deserves another look by rubio.

Anonymous said...

Oh let's just call Rubio what he is and has always been: a mean, arrogant, intolerant, self-righteous, ruthless, racist, homophobic asshole with a Napoleonic complex. He and his Tea Party (American Taliban) buddies and the Koch brothers would gladly carry us on the road to dictatorship like his German hero of the 1930's, if he meant he could be the dictator.

Anonymous said...

Schwartz-not the most brilliant. Dan Pearson matched him intellectually. Schwartz' response was to take nasty potshots at Pearson. It is unfortunate that a man with such intellectual capacity has little else. His primary enjoyment in life was his ability, by virtue of position, to belittle, humiliate, denigrate and embarass everyone else.

Anonymous said...

I had a case with Judge Schwartz on the panel years ago when he made a joke about my former client because he died of AIDS.

When he asked me about the case, I told him the reason for the speedy trial issue was because the client had AIDS and did pass away.

Schwartz said: Well, I guess he got judged by a higher court..."

Judge Melvia Green turned white as a ghost. The other judge gasped.

A bunch of law professors where there and were very unhappy and complained.

I will never forgive him.

Thanks to his rude behavior, they now have cameras recording the oral arguments.

Go away and stay away....

Anonymous said...

I wish to join the "I don't like Alan Schwartz" chorus.I found him to be smart but, not brilliant.
I also found him to be a total flaming jerk.

Once at oral argument, I saw him do the famous turn the chair around when a civil lawyer was making her argument. She just kept on talking.

Alan sure had a bad attitude.

Dore Louis said...

Among many things, Judge Schwartz leaves a legacy of cases that protect litigants' rights to a fair determination on the merits.

It was not always that way - before I was ever a lawyer, a case came out that did much to evolve the courts away from technically affirming lower court opinions because they were presumed correct in the face of an inadequate record - Judge Schwartz authored the opinion:

"We see no reason why either appellate decision-making or appllate practice should differ in any substantial way from the manner in which cases are determined and presented in the trial courts: with an equally effective determination that, as far as possible, cases are to be determined on their merits."

That view, that litigants should have their fair day in court has carried into the manner in which the Third is run - ask for an extension to file a brief, you are going to get it, ask for oral argument, you are going to get it. Seek to supplement the record so the appeal can be fairly decided - it will happen.

Contrast that approach to appeals within the Federal Circuit we sit in and you will really begin to appreciate appellate practice in the Third - a legacy owed in large part to Judge Schwartz.

This is just a small portion of Judge Schwartz's tremendously strong legacy - and we should all be grateful for it.

The rest will die with us and our memories; leaving a process in place that is fair to litigants will carry on a very long time.

Anonymous said...

I prefer the chair turn around to the outrageous smirking that comes from Judge Pryor on the Eleventh.

Anonymous said...

the guy ruled for me once...always joked around on Flagler...him and jerry would meet for lunch...oh i had no opposition...and he said he had to be the opposition...he was funny at times...

David Tucker said...

For those of you who want, there is a petition requesting that Senator Rubio and can be found here.....pleas sign and circulate- it can be found here... http://chn.ge/16tN8lo

channel ten is doing a story on it tonite at 6

Robert Kuntz said...

A quick Judge Thomas story:

I was before him early in his days on the civil bench, after a career dedicated to criminal law. The issue was pretty arcane, even for civil law specialists -- which he certainly wasn't at that point.

I made my argument, opposing counsel made his. Judge Thomas then said the words you LONG to hear a judge say: "Gentlemen, I am not sure I understand your issue. Will you please wait until I finish the rest of the calendar and then we can spend some more time on this?" We stayed on after calendar, he spent time with us, did some reading, and then issued a perfectly reasonable order the next day.

Humble, intelligent, hard-working, attentive, compassionate -- all you can ask for in a judge.

Sen. Rubio's criticisms -- which amount to the facts that the judge was moved by the suffering of a victim in one case and imposed a legal sentence in another -- just don't ring true.

Anonymous said...

to 11:29am and the AIDS patient / speedy trial .... please know that the trial judge (me) never forgot that tragic case ... may he rest in peace ... you sir did a wonderful job as always --- it was such a pleasure to see your passion and kindness which was genuine toward your clients!

Anonymous said...

Hard to find a nice thing being said about Alan Schwartz isn't it?

I do appeals. If Schwartz is on the panel, I cringe but, I have won a bunch of those.

I find no reason why a judge should be such a abusive asshole.

Anonymous said...

Schwartz was quicker when he was younger (I would characterize him as "brilliant" during those days), but he slowed (as we all have or will). He still made (mostly) proper decisions. But, again, he was one of the most arrogant people I've ever had the displeasure of meeting and is a testament to the JQC and FLSC's willingness to protect their own. Everyone knew what a jerk he was on the bench.........it's inexcusable that it was tolerated for as long as it was.


Anonymous said...

Gee, hard to find anyone who likes Judge Schwartz.

Anonymous said...


I appreciate your desire to petition for Thomas, but do you really think Rubio gives a shit about what the people want? He counts on Spanish speaking support just because he is, by name only, one of them, and the I-4 corridor. He could not care less about the rest us.

Just read my comments at 10:34 p.m.

Anonymous said...


Please write another post so that the Schwartz picture isn't the first thing I see every time I open the blog.

Anonymous said...

David Tucker: Until you learn to write you should probably remain anonymous. Are you sure you are a lawyer?

Anonymous said...

I raise one last point on Alan Schwartz. Isn't anyone wondering: Why now? Alan has no other life.

Although as BTDT points out, he is not as sharp as he was, he is still, in legal acumen, better than almost everyone else at the 3rd. Something is amiss.

Is it his health? Is he so out of tune with the general thought process of the other judges? Are some of the judges at the 3rd people who have been slapped around by him in the past and this is payback? Has he committed, yet again, some act that has caused or threatened another JQC complaint over his demeanor or ethical behavior? Or is it Schwartz's visceral reaction to an upcoming opinion which is generally going to embarrass him? Don't believe, with his ego, that he is leaving to go sit on a beach.

Anonymous said...

Damn. And I was so looking forward to playing shuffleboard with him every Monday morning in Eastern Shores!

Anonymous said...

After 30 years of watching Schwartz abuse lawyers, I guess that he also browbeat his peers at the 3rd DCA to get his way or horsetraded his willingness to write opinions for power. Once his intellect faded, the napoleon complex was all that remained and the new appointees had less tolerance or respect. This may not have been entirely his decision.

Anonymous said...

Funny you posted a picture of Judge S with a smile.

In 30 years over there, I never saw him smile once.

I also was abused by him.

Bad judge.

Anonymous said...

Owe yes. One of you is right. He had a very thorough complaint filed against him by a most tenacious litigant who many judges fear. About 7 days he later, he announced his retirement to take effect the next week.
Lets face it, he is a bank judge. He has been unfair to many in his and thru his rudeness which has caused a great many problems.
He does labor for justice, but only for those he favors.
It is the old story, if two nobody's got to court then it is a toss up. If one well known favored party goes to court with a nobody the favored party will win each time in his court room. Like the first comentator stated himself, the judge had a glee in his eye each time he saw them. To hell with the other side.
We invade countries to remove despots and tirants and to establish the rule of law. Well Schwartz has been a despot and a tirant and has violated the rule of law. It is just a shame that he was not removed by force.

Anonymous said...

He was a rude man. Having always lived in toni neighborhoods he awarded me a temporary alimony of $1000 and said he would consider me like someone from Hialeah simply because I am Spanish.