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ERROR TO DENY LEGALLY SUFFICIENT MOTION TO DISQUALIFY JUDGE – JUDGE ABDICATED HIS POSITION OF NEUTRIALITY BY GIVING UNSOLICITED AND STRATEGICALLY BENEFICIAL LEGAL ADVICE TO THE DEFENDANT, AND THEN CONTINUED THE PROCEEDING WITHOUT THE DEFENDANT ASKING, SO THE DEFENDANT COULD ACT ON THE ADVISE

Jun 14th, 2024 in by admin

Torres v. Orlick, 49 Fla. L. Weekly D916 (Fla. Apr. 19, 2024):

The plaintiff obtained a clerk’s default against the defendant who moved to set it aside. The defendant’s counsel alleged excusable neglect, blaming his intake department for failing to diary the answer, but provided no sworn evidence of the failure via affidavit or otherwise.

The trial court set a hearing and the plaintiff argued that the defendant’s motion was legally insufficient because the motion was neither verified nor supported by an affidavit. The trial judge then interjected himself into the proceeding by continuing the matter without any request from the defendant, so defendant could procure and file supporting affidavits.

The trial judge’s actions here supported disqualification because he abdicated his position of neutrality, by giving unsolicited and strategically beneficial legal advice to the defendant. He then continued the proceeding without the defendant even asking. “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.” The appellate court disqualified the trial judge.