$583.73 – in the legal profession it is not a whole lot of money to be charged for “legal work.” In relationship to the Casey Anthony case, it is less than 1/4 of 1 percent of the $250,000 Jose Baez received from ABC and other sources.
But it is the requirement to pay the attorney’s fees (really a fine) of the State Attorney’s Office that highlights my biggest “beef” with the Casey Anthony defense team – both the “inexperienced” members and the “over the hill” members.
Specifically, they have repeatedly elected to create judicial theater to the detriment of their client; and while such antics may make for great news at 6 – they also make for very bad legal precedent for the rest of us practicing attorneys.
If you think the fine is improper or not warranted – stop whining, stop writing letters throwing your co-counsel under the bus, and stop making bad legal arguments. Instead either suck it up or appeal. In this case, the order to pay attorney’s fees, while warranted, appears to be illegally assessed – so appeal. If you don’t, it creates bad precedent for the rest of us.
Philosophical versus Professional Opinion
This brings me to the reasoning of fining Jose Baez $583.73 versus the legality of fining Jose Baez $583.73. While it might have been right, it was wrong.
From a philosophical stand point, I understand where Judge Perry is coming from. He is dealing with a defense team that has had one constant – Jose Baez.
And with Jose Baez at the helm for the past two years, the defense team has spent over a quarter of a million dollars – with absolutely nothing to show. It has inundated the Court with a multitude of motions – the majority of which have little to do with the actual substantive issues in their client’s case. It has now spent nearly $50,000 of the State of Florida’s money with little actual progress to show. And probably most important to Judge Perry, it has wasted, in the middle of a State budget crisis, the time of a large number of public employees.
And so, if this was the reason that Judge Perry finally dropped the hammer and fined Jose Baez – I completely understand.
Unfortunately though, Jose Baez is not the first attorney to cause needless delays, file meaningless motions, and in general show himself to be ineffective. This is a trait that has been shared by numerous prosecutors and defense attorneys over the years – and the issue of fining such ineffective attorneys has been litigated before.
This brings me to my professional opinion – from a professional standpoint Judge Perry’s order to pay the State’s attorney fees is clearly prohibited by existing case law. Specifically, absent statutory authority, a trial court has no legal authority to require either a prosecutor or a defense attorney to pay “attorney fees” or “court costs” to the other side or to the court. See State v. Nelson, 27 So. 3d 758 (Fla. 3d DCA 2010) (“The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.”); Williams v. State, 596 So. 2d 758 (Fla. 5th DCA 1992) (“It is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute;” dealing with circuit wide practice of fining defendants for wasting judicial resources by waiting until day of trial to plea.).
If Judge Perry wanted to legally fine Jose Baez, he would have had to hold him in contempt and hold a contempt hearing. See State v. Shelton, 584 So. 2d 1118 (Fla. 5th DCA 1991) (“Only through the use of criminal contempt procedures, direct or indirect, can a trial court assess fines or costs against an attorney in a criminal case.”). However Judge Perry specifically stated that he was not finding Jose Baez in contempt – for now. Thus his order requiring Jose Baez to pay the State Attorney’s office $583.73 was illegal.
Regardless, even if Judge Perry would have held a contempt proceeding, the proceeding carries many more protections and is much more involved than the hearing Judge Perry held.
Which brings me to a convergence of both my Philosophical and Professional opinions regarding the reasoning behind Judge Perry’s original order requiring the Defense to not only list their experts and their area of expertise; but also requiring them to state exactly what the experts would say. He premised this requirement on the general theory of litigation in Florida criminal cases that we do not engage in “trial by ambush.”
This is true and this is also the reason that Florida allows for depositions in criminal cases – so that both the Defense and State can “discover” what the other side’s witnesses will say. A Party can either take advantage of the opportunity to depose someone and thus avoid the “surprise” of what the witness has to say; or they can decline to depose the witness and risk being surprised by what the witness will say.
In Jose Baez’s case, I suspect that Judge Perry originally did not intend for his order to be so far sweeping as Jeff Ashton believed. However I have little doubt that the immature, if not childish, manner in which Jose Baez responded to the order is what pushed Judge Perry over the edge (in context of the entire case especially) and caused him to require such specific disclosures in ADVANCE of the deposition where in reality; our discovery system is set up so that Jeff Ashton can find out what the experts know at the deposition.
And so maybe Jose Baez was wrong in the way he responded to Judge Perry’s expert discovery order. But Judge Perry was wrong for requiring Jose Baez to pay the State Attorney’s Office attorneys fees of $583.73. Either Jose Baez’s conduct was contemptuous or it was not; but if Jose Baez’s response was wrong, but not contemptuous – it does not justify requiring him to pay the State’s “attorney’s fees” in violation of clearly established case law.
But more problematic for attorneys like me, Judge Perry’s fine sets a precedent for other Judges in the circuit. And if it is believed it is okay to fine Jose Baez without finding him in contempt, what is to stop them from fining me any other attorney whose response to a Discovery Order is not believed to be in “substantial compliance.”
And that, ultimately, is what is wrong with this case and the fine: Two Wrongs Don’t Make a Right – just bad precedent for the rest of us.
84 responses to “Two Wrongs Don’t Make a Right”
Richard, I was in total agreement with your blog until I got to the part where you are questioning Judge Perry’s decision to impose a fine on the defense. With all due respect, what makes you think that you are better versed in law than a chief judge? You are a smart guy but more than a little arrogant at times, I must say, respectfully. What precisely are your intentions? Jockeying for Judge Perry’s position? You’re going about it the wrong way, in my humble opinion.
Pointing out what the case law says is neither arrogant or disrespectful. The fine may have been warranted, but the method if imposing it was incorrect.
Mr. Hornsby, the bad precedent being set is Mr. Baez’s peer review, don’t blame a judge for calling an end to nonsense. Mr. Baez is supposedly a State of Florida Attorney, he should know the laws of discovery. With so many professionals out there commenting on this case, the precedent set for the quote “rest of us” should not be the topic of discussion, hopefully other attorney’s in that “rest of us” group, don’t have anything to worry about.
Regardless, two wrongs don’t make a right.
I’m not an attorney, but I don’t see it as two wrongs, I see it as Mr. Baez needs to prepare himself, he’s been working on this case for a very long time. Mr. Baez perhaps has taken on a case that he is “Quite Frankly” not seasoned for. Judge Perry, has given him many lessons already, lessons he shouldn’t have to for a lawyer. Mr. Mason should be mentoring him, since he is the DP qualified lawyer. It seems he too, is having some sort of problem, he makes statements to the media that aren’t even found in the released discovery, it’s almost as if they are not reading the discovery, which appears to normal citizens looking in thinking something just isn’t right. Individual responsibility is a better way to describe this. This of course is just an opinion. We need to set better examples.
He made a clear and precise statement that cites case law.
I don’t see anyone blaming Judge Perry for calling for an end to non-sense.
Re-read the article.
He’s pointing out the precedent it will set and the effect it will have on him and his colleagues.
Is that NOT what this narrows down to?
Bamboozled, you are right! Rickhard is pointing out that “it might set a precedent & the effect it will have on him & his colleagues!” TOO BAD! THose that abide by the rules WON’T have a problem, those that don’t will! Ridiculous! I don’t hear Richard DEMANDING KC have a competent defense, he is more concerned about himself & his peers! Most people are fed up with self serving attorney’s not only in this case, but many high profile case with Garagoes coming to mind! Laughable!
I don’t know where you read, but there are thousands of comments demanding that this crap that has been allowed in this case be stopped, yes, demanding that this no nonsense Judge that we were promised wouldn’t allow this Circus to go on that had started in Judge S’s Coutroom & Judge P “suffered no fools.” FINALLY Judge P has addressed it, LONG OVERDUE! I have read countless articles that those that DEMAND that Attorney’s act professionally & follow the law are furious with Judge P for allowing it to go this far!
Attorney’s whining they are “not respected get no sympathy from me, if these nut job attorney’s such as Baez worked in the private sector, they would be FIRED FOR INCOMPETENCE, instead, we see these incompent attorney’s represent client’s in DP cases! WHERE IS THE JUSTICE IN THIS?
LOL! The Sentinel did an article on the question if Baez was “capable of representing KC & the only Supportive comment I read was from, guess who, a liberal Professor that said we would have to “wait until trial to see if Baez could pull it off.”
In other words, KC’S REPRESENATATION BY AN INCOMPETENT ATTORNEY would play out in court, we would see how Beaz does, INSTEAD of any concern that KC IS DUE A COMPETENT REPRESENTATION! The JOKE is on the Legal profession itself! For $ 325,000.00 you buy yourself an idiot to represent you, KARMA!
Many up, Hornsby!! If you don’t want the fine don’t do the crime! I support Judge Perry 100% on this issue. In some instances philosophical must take precedent over the professional. Baez and Mason pushed Judge Perry against the wall repeatedly. The contempt charge against Baez could come after this case is over.
So, in that event, what is CM doing? Is he trying an different approach by giving the Judge information to allow the Judge to change his order without going through the appeals process? Chalk it all off as an misunderstanding?
Hold that check? You might not want to cash it?
So the way I understand it, you are saying that SA JA requested the wrong thing, Judge P ruled the wrong thing and Cm paid the wrong thing.
How do they get out of this mess?
My guess is that even though CM says he spends the bulk of his time “researching,” he did not research the law on this specific issue and is therefore winging it on general principles and verbose verbiage.
Thanks Richard! I’m an RN with a concern regarding Casey Anthony’s defense and wondered if I could ask you a question?
At the hearing the above ruling was made, Mr Mason represented it seems, Mr Baez and spoke on his behalf. In my educated opinion, he appeared confused and completely unprepared. Several times he either couldn’t hear the judge speaking via microphone or misinterpreted what he did hear. If he was looking down he heard nothing. When the Judge attempted to lighten things up while Mr Mason searched his papers for something by cracking a joke about another judge leaving and what did Mr Mason do to him, the humor went completely over his head. I’m not even sure he heard or understood what the judge had said, but rather than ask him to repeat it he said we’ll have to see with a completely flat affect.
I thought I was looking at early dementia. I don’t imagine a lawyer of Mr Mason’s stature has managed to build a reputation or manitain a spotless record over 40 years by not knowing what happened at any hearing concerning his client he didn’t personally attend regardless of who the Lead on the case is. If he isn’t reading rulings and hearing minutes and he isn’t calling his partner to ask for updates and he can’t hear or comprehend what it is he thinks he’s hearing when he’s actually there….then it seems he’s no longer be fit to practice. Certainly not on a death Penalty case and now he’s taken on 2.
My question is whose job is it to blow the whistle on a member of your profession who demonstates a physical impairment that is obviously going to impact the representation of his client, and is? The dementia is a tougher call I realize. If his ‘confusion’ and apparent memory loss are pathological in origin don’t expect him to step to the plate and admit he’s losing it. It’ll be your job, or my job or ideally a family members job to put a stop to it.
What actions are available to the judge if he thought one of the lawyers in his court required medical clearance to proceed?
Thanks if you have time to answer. I understand if you don’t. Love reading your opinions either way!
I believe CM just has bad hearing.
Hearing affects comprehension though and with all due respect, you aren’t an expert in medical assessment.
Thankyou Mr Hornsby for your opinions. I appreciate you taking the thought and time to comment on the Anthony case. kaRN: As a fellow Canadian RN with 24 multidisciplined years experience I would suggest to you that you are stepping out of your zone. A senior not reading rulings, or hearing minutes does not indicate , as you would suggest, dementia. You claim to be be a triage nurse and as such can make no such determination. A medical assessment is not a diagnosis. No disrespect intended. Doctor’s diagnose and Nurses heal. Mr Hornsby may be correct in his belief.
And you’re making a medical assessment through a video on your computer screen, kaRN?
In fact, you’ve completely misunderstood the incident with the retired Judge leaving the courtroom. As he got up and headed towards the door, Judge Perry made mention of it to Mason, who had his back turned against the gallery and couldn’t see that he was leaving. Mason replied “he better not be!” (which is a clear signal he heard EXACTLY what the Judge said), the Judge said something to the effect of “well, he IS, do you know why?” and Mason replied “We’ll have to see”.
And so, you’ve taken YOUR misinterpretation (obviously not hearing clearly yourself) and concluded that it’s a sign of Mason having “early dementia”?
I don’t think that Mason was “confused” at all in arguing the sanctions motion, he just chose a different avenue in his argument. Instead, complaining about things the State has done that has hampered them in several aspects (including the one they were being brought to task on).
Hows about sticking to treating patients that you can communicate with, touch and see within a couple feet of your eyes.
And kaRN, why did you ask Richard’s opinion on the comment, just to excuse it because he’s not a medical expert? LOL.
I’m curious Richard, and this is a sincere question. If HHJP had simply fined JB, to whom would the cheque be payable to?
My understanding of the fine HHJP levied was to be the equivalent of the amount of time the SA’s office spent on this debacle, not to actually pay them for their time. So you are saying I was mistaken?
I understood that taking the cheque to the SA’s office was simply a lesson in humility, not as an actual payment to them, or the State Attorney’s office in general.
Can this be an appeal issue for Casey Anthony?
Also, by having the check made out to the state of FLA, doesn’t that go beyond the prosecutors, even though it was calculated based on their work? In other words, can’t it be considered a fine, since the Judge rules in a court in the state of FLA?
Sorry, I just reread, and according to your post, I understand that you can’t impose a fine without charges of contempt. It is sad, if that is the case. It would appear that less professional (or unethical) lawyers are able to hijack the courtroom, with little recourse from the judge, unless he slams the full hammer down on them.
It is called Due Process.
I get it.
I do believe that defense lawyers should be able to push the envelope to a certain extent, they may have to, but also honoring and respecting the court while doing it, or giving the appearance of such. Unless the judge is blatantly racist, unfair, partial, or has an obvious conflict of interest, (many serious examples), you look like an ass if you believe and act like you are above the court for no reason. More importantly, it’s not in the interest of your client to get on the wrong side of the judge, without any sane or advantageous reason to do so, or to present a public display of outwardly trying to ‘game’ the system, outside of law. This perception hurts all defense lawyers, (much greater than this teensy fine and its ramifications), in the eyes of ALL future jurors, and by extension, you, your livelihood, and the fairness of any defendant’s trial.
Perry seems to be largely measured, in terms of sticking to the letter of the law, and yet he has been granting some leeway. He appears, to me, to be a much more conservative judge than Strickland, but then he has also been on committees to determine funds for indigents. So the funds received by this defense, present day, might not have been what Strickland would have allowed, in my opinion.
What Perry did was give these guys a ‘slap on the wrist’, if it sticks. I don’t believe that this was a day that would prove to open the floodgates to further the practice of fines against defense lawyers, without a contempt order, setting a new precedent. I think that it would prove to be the day that a bumbler was given a much deserved warning, but not too harsh where it might cause damage to a defendant. In fact, any smart defense lawyer could argue that they didn’t deserve a fine, if this was brought up as case law in the future, simply by demonstrating their own effectiveness and competence vs. these particular attorneys and their prior actions in this case. In other words, no new lawyers will get fined if the Laurel and Hardy case is the ONLY one on the books. However, future stumblers may argue that they don’t deserve contempt charges, but rather a small fine, if they can demonstrate that the court allowed a lesser alternative, by citing this case.
I suppose, in effect, I agree with some of what you said, but not all. I know that you know law better. However, law is fluid and common sense should prevail. Behaviors that you, yourself, have found abhorrent, should be stymied, even if done so gently, for the sake of the defendant and the process overall. Not to mention your future earnings, again.
The Bar lets WAY too much slide, and is acting on its own interests, with fear of repercussions; less members and ironically, lawsuits. Otherwise, why aren’t there higher standards for conduct or knowledge?
Richard, another good article & opinion BUT isn’tthat why he is “CHIEF Judge M. Perry?” The PUBLIC following this case wanted something done with an incompetent attorney disrepspecting the Court & Judge P, defiant, & if your pissed about the Check Baez wrote, but angry that an incompetent attorney continues to pass deadlines & is a smartass, always pushing the limits, most of us following this case won’t agree with you. The Ocean of Motions C Mason filed in December were a month late yet they weren’t even reprimanded for that. Sorry Richard, Baez’s peers won’t have anything to worry about if they “act professionally & obey the rules!”
We have watched the media whore Baez LIE to Judge P’s face about receiving a “collect call from jail, claiming he didn’t remember,” well he was a blatant LIAR! The STATE stopped short of calling him a liar & it wasn’t lost on Judge P’s response to the MOTION. We have heard Judge P say more than once, “Mr. Baez led me to believe…………..” YEA! That Baez thinks he is smarter than everyone!
WHAT IN THE HELL IS GOING ON IN FLA. to allow an inexperienced attorney run this Death Penalty Case when he in NOT Qualified? WHY is this allowed? KC’s life is on the line & two years later, Baez is the POS that continues to promote himself in the media whining! WHY IS THIS ALLOWED when KC is facing the DP? Outrageous!
Richard, the Defense had $ 200,000.00 ABC, $ 75,000.00 donation from Todd, & $ 50,000.00 A Lyon’s brought to the case. That’s $ 325,000.00 that Baez has pissed away, apparently most of the work was done by A Lyon’s writing the MOTIONS on the DP. Just Wait! That APPEAL Attorney will SCREAM how Baez “mismanaged KC’s Trust Account, KC “will finally get it,” & Baez will have to lay it all out, all the expenditures!” If Baez doesn’t think KC won’t turn on him he’s an idiot yet again!
KC deserves a zealous defense, NOT an incompetent defense & that’s exactly what she’s got! MORONS imo! Both an embarassment to legal profession.
Mr. Hornsby, thanks for taking the time to write about this issue.
I’m curious though – because it was my understanding the fine was described as a “sanction” imposed on the defense attorneys for failing to comply with the court’s order regarding the defense’s expert witnesses.
Does the description make a difference? To give an example in layman’s terms, a “time-out” as defined within a football game is different from a “time-out” as defined within a 3rd-grade classroom and to those familiar with both, the difference is clear. To me, because IANAL, a sanction and a fine mean the same thing. I can’t tell any difference.
So I’m asking, is there such a thing as a “sanction”, defined within a legal proceeding, that is different from a fine imposed based on a finding of contempt? I.e., an action which requires different criteria be met before it can be imposed.
Did the players possibly use the term sanction incorrectly?
The description is irrelevant, it is the substance of the “sanction” that dictates what is authorized and what is not.
Mr Horsnby
I get what your saying about substance and that’s why I’d appreciate if you would clarify something for me. My understanding of J Perry’s order was that he was specifically using Florida Rule of Criminal Procedure 3.220(n)(2) as to the specific violation of the discovery rules. Does this not allow him to award costs/attorney fees for said violation.
He then cites 3.220(f) when he ruled that the defense should compile reports from all listed experts. 3.22(f) empowers the Judge “to require ‘such other discovery to the parties as justice may require.”
Where does it say he had to award a contempt charge?
Respectfully…trying to understand this, specifically the distinction between fining the defense or as he did, making them liable for the other sides costs/attorney fees.
It is my opinion, but an issue far from decided, that the language stating that sanctions can include “costs” is limited to actual out-of-pocket costs such as court reporter fees, copying, out-of-pocket expense if you will; not attorney’s fees because prosecutors make the same each year no matter what they work on. And the case law – again, in my opinion – supports my position. Finally, while I disagree with Judge Perry, his decision will stand unless Casey Anthony’s defense team appeals the order as the law would required. Otherwise the “fine” will stand.
I would just say that even if a prosecutor makes a fixed salary, if he/she is required to spend time drawing up a motion for sanctions, he /she could well be doing something more productive, ergo there is an additional cost to the State. Semantics, I suppose.
I think Perry was pretty lenient, all things considered.
But Thank you for taking the time to respond.
Art Tart,
I agree with you 110%.
Richard, your analysis of the fine imposed on Mr. Baez is debatable, if not outright wrong.
Richard:
With all due respect, the case is NOT judicial theater, more like a freakin
Greek Tragedy. In fact, truly would advocate a solid [[[[[gavel]]]] coming down on “The Fred and Barney Show”. What the public witnessed for over 2years is a idiot posturing. If you care to school your academic brethren, then by all means….send him an email. AT this juncture, nothing is going to save face. Baez is a joke! You know it , and so does the entire legal community. My fervent wish is that Judge Perry….continues to getrdone.
Feast or Famine, you know what that means. What happened to ETHICS 101?
Haven’t we had this discussion of Who is wrong/right on the law many times??
Perhaps, your rose colored glasses need some filtering, cuz Baez AKA absolute JOKE! Objectively and duly noted!
YES, I shall say one final comment! STOP making excuses for the piss poor representation, and a colossal mess. DUE PROCESS unequivocally… haven’t seen any sign from the DEFENSE to date.
Would be refreshing to read objective briefing upon occasion…lol
Civil Lawyers are watching! Who said that?
Hi Richard,
I am not familiar with Florida Law, but I did try to look up information and found what I listed below. I guess the defense could argue the amount of time they received notice(is there somethinglike a 21-day rule) But I feel that Judge Perry sanctioned Baez based upon “bad faith” due to his non-compliance of discovery concerning his experts, even though “bad faith” could technically be contempt I don’t think Judge Perry held him in contempt. Also the downright childishly worded emails written by Baez when the state asked him to comply(listed with the court as evidence). The defense came into the court room unprepared to address the sanction issue, I don’t even think they filed a response to the motion prior to the hearing. Baez could have brought in the person who was delivering the documents as a witness but instead Mason got up to argue against the sanction and when Judge Perry asked him questions about the situation he basically told the Judge he didn’t know. How can you make an argument when you don’t know (another waste of the courts time). Then Baez had to get up and address the Judge’s question, and he made it sound like he got stuck in traffic and cited faxing problems because of to many documents. Why didn’t he just fax the required documents and worry about the others later. The court had already had 2 previous hearings on this discovery matter so I feel the Judge was appropriate with the monetary sanctions because the defense wasted the courts time by not being prepared to argue the sanction motion.
This is what I found on a bar jounal article so I don’t know if it still applies:
Moakley ruled that “inherent authority” sanctions by trial courts could only be imposed for “bad faith litigation.” The trial court must hold a hearing, giving notice and the right to call witnesses. The trial court must also make detailed findings of fact, detailing the “bad faith.”
In Moakley the trial court sanctioned a lawyer and client $1,125 for the lawyer’s issuing a subpoena to a fact witness (former counsel to the opposing party) with “no reasonable explanation for issuance of the subpoena.” The Third DCA affirmed, 730 So. 2d 786 (Fla. 3d DCA 1999), under the trial court’s “inherent authority” to sanction lawyers.
The Supreme Court ruled that trial courts have “inherent authority” to punish lawyers, but only for “bad faith conduct,” relying on Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998). Bitterman allowed sanctions against parties for “inequitable conduct . . . egregious conduct or act[ing] in bad faith.” In doing so, the Supreme Court recognized that lawyers must walk a narrow line between “bad faith litigation tactics” and “zealous advocacy”:
[A] trial court possesses the inherent authority to impose attorneys’ fees against an attorney for bad faith conduct. In exercising this inherent authority, an appropriate balance must be struck between condemning, as unprofessional or unethical, litigation tactics undertaken solely for bad faith purposes, while ensuring that attorneys will not be deterred from pursuing lawful claims, issues or defenses on behalf of their clients, or from their obligation as an advocate to zealously assert the clients’ interests. The inherent authority of the trial court, like the power of contempt, carries with it the obligation of restrained use and due process.
The Supreme Court then laid out substantive and procedural rules for “inherent authority sanctions”:
[T]he trial court’s exercise of the inherent authority to assess attorneys’ fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings, describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees. Thus, a finding of bad faith must be predicated on a high degree of specificity in the factual findings.
In addition, the amount of attorneys’ fees must be directly related to the attorneys’ fees that the opposing party has incurred as a result of the specific bad faith conduct of the attorney.
Moreover, such a sanction is appropriate only after notice and an opportunity to be heard—including the opportunity to present witnesses and other evidence.
Finally, if a specific statute or rule applies, the trial court should rely on the applicable rule or statute rather than inherent authority.
Earlier in the Moakley opinion, the Florida Supreme Court favorably quoted Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991), the 5-4 U.S. Supreme Court decision upholding federal trial courts’ “inherent power” to sanction lawyers: “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process.”
Chief Justice Wells, however, in his separate opinion in Moakley (which concurred only in quashing the sanctions) stated his concerns that
bad faith is not defined. What is bad faith in the subjective view of one judge is, in all likelihood, not going to be bad faith to another. Lawyers will not have notice of the boundaries of “bad faith.”
Would the proper procedure be for Baez to appeal the decision or ask the judge to reconsider?
Sorry that this post is so long, but I am trying to understand both sides.
Hi Mr. Hornsby;
So….(if I understand you) prior to any sanction of a lawyer in Florida the lawyer has to be charged with contempt and then a contempt hearing has to be held? That really would take a lot of the power away from the Judge, wouldn’t it? I’m just a regular trial watcher..and I recall in other trials I’ve watched the Judge has sanctioned a lawyer (a specific amount) and it was done then and there…no contempt hearing. Are you saying that the Judge could have sanctioned him $500 (to be paid to the court) and that would have been all right?..Is it that the Judge wants Baez to pay fees to the Prosecution that is incorrect?
No, not any sanction just requiring an attorney to pay “attorney’s fees” to the State Attorney.
Well, I cannot believe that you have called Judge Perry out on this one, Richard! I resent it.
Even if you felt this way, why even write about it? This whole process has been like a train wreck because of Jose Baez and later Cheney Mason. By the way; it is odd that Mr. Mason cannot hear a voice over the microphone, but he can hear the whispers at the bench in a sidebar.
I just have to say that I am deeply disappointed in you for having written this piece, Richard. I will not be following your comments any longer, but I will check back to see if you have let this opposing comment remain. Or will you censor it because I do not agree with your antics?????
I thought Baez was made to pay for costs. Not attornney fees to Mr. Ashton as a fee.
Kate, please put a sock in it.
Diana aka hinky: did my comment offend or strike a nerve. The superfluous sock is not my forte! Furthermore, what is not to understand ? Richard is a DEFENSE LAWYER! Perhaps, we should ask why you even bothered to drone on with your post, and leave a juvenile dig….hmmmm
Mr. Hornsby – In one of your previous posts you said you believe that C. Mason has bad hearing, sorry, I belive he has selective hearing.
Richard,
The inmature babies who disagree with you know nothing about the law. They
bash the defense and Baez on a daily basis for doing their jobs so anyone agreeing with them will
be hung at the stake and stoned as well as anyone who feels that Casey is innocent until PROVEN guilty. Instead of calling him Mr. Baez, the call him Bozo. That should say a lot! Real adult now!
I understand what you are saying, too bad the haters cant see past their own fogged head and re-read your article…It’s always the same group of people who go blog to blog bashing and creating drama. It’s getting old now
Clean out your ears, I am a HUGE fan of Richard’s, I usually agree with his contributions but if you have “glazed over the ineptitude of a 3 yr, attorney, that has added 2 more yrs. experience on this case at the cost of $ 325,000.00, LEADING this Death Penalty Case while “not qualified” & disrespecting the Court, then you don’t get it. Do you follow ALL the HEARINGS & read ALL the Motions the Defense puts out? Apparently not.
KC is due a COMPETENT Defense, she doesn’t have one! imo, this isn’t about “haters of the Defense,” this is about DEMANDING KC receiving a COMPETENT Defense that every single person deserves on trial. Judge P has already told him, “He would like to try this case once, but, he can try it twice.”
I think Richard would agree with that.
I’m not sure if you read my earlier post, but I’m still trying to understand this.
Wasn’t one of the reasons for the hearing to address the sanction motion? If so, wouldn’t that be a part of due process. It seems that the judge was giving both sides an opporitunity to argue the motion and provide evidence to the court to support their arguments concerning the sanction issue. It’s not like an issue occurred that was spur of the moment during a hearing, that a Judge may consider “bad faith”, and then immediately imposed sanctions with no hearing. Why would you hear arguments pertaining to sanctions, then have to hold another hearing for contempt?
Why do you think that the defense seems to come court unprepared, more often than not? It’s like one hand doesn’t know what the other is doing. They should know what each hearing entails, and they have transcripts from prior hearings so why aren’t they more prepared?
~~~ Or will you censor it because I do not agree with your antics?????
I think you’ve confused Richard with another blogger, who, shall remain marindade,….oops, I mean nameless!!
Come on, Diana, heads should be stuck in the sand in this regard, why? If judge Perry assessed the cost improperly, he assessed it improperly. I think it’s ridiculous that Richard pointing it out should hurt your sensibilities.
Thanks for another interesting read, Richard. It’s always a pleasure!
~~ My guess is that even though CM says he spends the bulk of his time “researching,” he did not research the law on this specific issue and is therefore winging it on general principles and verbose verbiage.
Mason, verbose verbiage, seriously….. lol! His incessant prattling is becoming mind numbing!!!!!
I can’t believe this man has been practicing law for 40 + years. People actually pay him?…he wins some cases?
~~~However, law is fluid and common sense should prevail.
Whose common sense? The law is interpreted and applied by judges. They don’t get to impose their societal beliefs on us. If someone thinks they got it wrong, there are appeal courts. Common sense is subjective. It is not the courts purview to legislate from the bench.
I get wanting to see Baez chopped off at the knees for all his childishness, his arrogance and general sliminess but goodness, why shoot the messenger who informs us that there is no legal basis for the way in which the good judge resolved the matter, in fact, that case law instead dictates that it can NOT be ordered so?
Richard,
It is so nice to read the opinions of a lawyer with regards to this case. I am not in favor of the death penalty for anyone, including Casey Anthony, but knowing that “death is different” only competent and experienced lawyers should try these cases. Baez is neither experienced nor competent, quite the opposite. Yet, there he is.
I wish something could be done to stop this madness, but I know that Baez is Casey Anthony’s choice to represent her, and her decision is sacrosanct. If Baez weren’t such a tragic figure, he’d recognize his failings and his inexperience and step down with Casey’s blessing. Ah, but there’s that little thing called hubris, isn’t there? Baez is blind to his failings, he is on record as saying the media and others attack him because he’s Latin. Nothing could be further from the truth.
Also, I wanted to point out that I have talked to any number of criminal defense attorneys in Florida who have said the EXACT thing as you’re saying here – to a person they have said that this trial is setting some very bad precedents for cases that will follow. My brother is a criminal defense attorney, too, he’s tried quite a number of DP cases and he’s furious over what’s happening in Orlando. He won’t follow this case because it makes him so angry, but he’s well aware of the potential for very bad precedent.
I wonder if yesterday, in the hearing about the jury process, when the judge called the side bar, they addressed the sanction and fine? Perhaps the Judge realized his error and reversed himself? We’ll have to wait and see.
Thank you for sharing your insight.
Mr. HORNSBY i AM COMMENCING TO THINK YOU WISH YOU WERE ON THAT TRIAL FOR mS ANTHONy with the dream team. Sometimes you talk one way then other times you talk another. Which is it Mr Hornsby? REmember how Mason talked. Have to wonder why.
Mr. Horsby,
Do you remember that Mr. Nejames filed a bad faith motion against Baez?. That motion was settled at a closed door hearing/meeting between all attorneys involved and The Honorable Judge Perry, you don’t think that Mr. Baez was warned then about acting in bad faith again. You don’t think he was warned what would happen if he did it again. Mr. Nejames was asking for court costs at the time also. I think the consequences were discussed and I think the outcome was deferred to next time it happened again. It did happen again and again and again. How many more chances do think he should have?. I doubt very seriously that That H. Judge Perry is in error.
I don’t think he should have any more chances, but my opinion of the propriety of assessing the sanctions is the same: Either he is in contempt, or he is not. And only if he is formally held in contempt should the “costs” be assessed.
Frankly, I am tired of hearing about due process from attorneys only when it suits them. Who is demanding Caylee, the victim in this case, get her due process? Where are the attorneys demanding her rights be respected? You all love to bloviate about these idiots in your columes but at no time have I seen demands for the victims rights, but a well deserves fine 2 years in the making and your all about due process because if you don’t follow the rules in the future you might get fined? That is jusy pathetic.
Mr. Hornsby,
Isn’t this the Florida statute that the Judge can use? If not, why? Isn’t the judge able to base this fine on the actual court cost and not just an arbitrary amount or one recommended by the prosecution? I think the judge was trying to be fair. I’m still trying to find the statute that states the Judge can’t impose a fine on lawyers as part of sanctions. Please help??
924.395Sanctions.
—
(1)The Legislature strongly encourages the courts, through their inherent powers and pursuant to this section, to impose sanctions against any person within the court’s jurisdiction who is found by a court, in a capital postconviction proceeding or appeal therefrom, to have:
(a)Abused a petition for extraordinary relief, postconviction motion, or appeal therefrom;
(b)Raised a claim that a court has found to be frivolous or procedurally barred or that should have been raised on the direct appeal;
(c)Improperly withheld evidence or testimony; or
(d)Adversely affected the orderly administration of justice.
(2)Sanctions the court may and should consider, when applicable and appropriate in a case, include, but are not limited to:
(a)Dismissal of a pleading;
(b)Disciplinary sanctions;
(c)A fine; and
(d)Any other sanction that is available to the court under its inherent powers.
RULE 3.220. DISCOVERY
(n) Sanctions.
(1) If, at any time during the course of the proceedings, it is brought to the attention of the
court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
(2) Willful violation by counsel or a party not represented by counsel of an applicable discovery
rule, or an order issued pursuant thereto, shall subject counsel or the unrepresented party to appropriate sanctions by the court. The sanctions may include, but are not limited to, contempt proceedings against the attorney or unrepresented party, as well as the assessment of costs incurred by the opposing party, when appropriate.
(3) Every request for discovery or response or objection, including a notice of deposition made by a party represented by an attorney, shall be signed by at least 1 attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and list his or her address. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection and that to the best of the signer’s knowledge, information, or belief formed after a reasonable inquiry it is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive, given the needs of the case and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of this rule, the court, on motion or on its own initiative, shall impose on the person who made the certification, the firm or agency with which the person is affiliated, the party
on whose behalf the request, response, or objection is made, or any or all of the above an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee.
(o) Costs of Indigents. After a defendant is adjudged insolvent, the reasonable costs incurred in the operation of these rules shall be taxed as costs against the county.
(p) Pretrial Conference.
(1) The trial court may hold 1 or more pretrial conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. The defendant shall be present unless the defendant waives this in writing.
(2) The court may set, and upon the request of any party shall set, a discovery schedule, including a discovery cut-off date, at the pretrial conference.
Sorry again that these posts are so long, but I’m still trying to understand.
Mr. Hornsby,
I must admit that I disagree with many of your opinions. I do however respect them. (If we agreed with each other all the time, what would be the fun in that?) That said, I thoroughly enjoyed this piece and think you are right on the money. I hate that though lol because I love me some Judge Perry, but you are right. Either baez is in contempt or he isn’t.
Anyway, thank you for always backing up your articles with case law. If the defense team would do actual work for once they might have been able to successfully appeal the fine. Instead they blamed TRAFFIC.
P.S 1) Have you ever had a case heard before Judge Perry? 2) I know your opinion of baez but I’m wondering what other attorneys are saying about this circus. If it’s too off topic then I understand if you don’t answer.
Have a good evening, sir.
I have had few cases in front of Judge Perry. But the few I have I had I have found him to be non nonsense and to the point.
~~~~ but a well deserves fine 2 years in the making and your all about due process because if you don’t follow the rules in the future you might get fined? That is jusy pathetic. ~~~
well deserved or not is NOT the issue!!!! What is so hard to understand about this?
Would you really like to live in a society where the “law” was meted out in such a discretionary fashion? “Baez deserved it; we don’t like him; he is annoying and arrogant, so, “off with his head,” legalities be damned!! Are you really that naive?
For all the non-lawyers who so fervently disagree with, Richard, and apparently know better than him what is and what is not the law in Florida, perhaps you could say what you do for a living….maybe I would like to weigh in on how I know your job better than you do….doesn’t matter what it is – I’ll know better just the same…
I believe that I was respectful of Mr. Hornsby in my post. In fact, I rather like him, so I don’t understand your anger, or perception that I am ‘shooting the messenger’.
….
“However, law is fluid and common sense should prevail….Whose common sense? The law is interpreted and applied by judges.”….
Exactly. Although not stated precisely the way you might have liked, that was my point, I have heard differing opinions on the sanctions and the way that the judge could interpret the law when applying a small fine vs the greater step of contempt. I have admitted my lesser knowledge of the law. I even stated, “if it sticks”. And apparently you might want to buy a sense of humor, since some of my post was written ‘tongue in cheek’.
“Would you really like to live in a society where the “law” was meted out in such a discretionary fashion?”
Law is meted out in discretionary fashion. Where have you been? This is why there are judges. But also why there is an appeal process.
Definition of DISCRETION
1
: the quality of having or showing discernment or good judgment : the quality of being discreet : circumspection; especially : cautious reserve in speech
2
: ability to make responsible decisions
3
a : individual choice or judgment b : power of free decision or latitude of choice within certain legal bounds
~~~I believe that I was respectful of Mr. Hornsby in my post. In fact, I rather like him, so I don’t understand your anger, or perception that I am ‘shooting the messenger’.
I believe as well that you were.
I would not put you in the category of those who I felt simply wanted to “shoot the messenger.”
I’m not angry 🙂
~~ Law is meted out in discretionary fashion. Where have you been? This is why there are judges. But also why there is an appeal process. ~~
Discretion, as we are discussing it here, is a matter of law and dictated by statute, rule, case law….
“Discretion, as we are discussing it here, is a matter of law and dictated by statute, rule, case law….”
Agreed.
Judge Perry found Baez committed a willful violation of his order. I don’t doubt that he was indeed willful in this and in fact, that willfulness is one of his many used stocks in trade. I think a good majority will agree, he’s a real jerk.
It’s unfortunate that the law doesn’t prescribe a good swift kick in the rear end, or a slap up the side of the head, in an effort to knock some sense into this guy, but it doesn’t. What it does allow for, upon a finding of willful violation of the discovery rule, or an order pursuant to it, is a contempt proceeding.
The procedure for a contempt hearing is dictated by either FRCP 3.830 or 3.840
I don’t think there can be any doubt but that a contempt hearing wasn’t held in this regard and that Baez was not/has not been adjudged guilty of contempt – despite CM bringing a motion which requests in part to “vacate the finding of contempt.”
In the absence of a finding of contempt, the case law, as Richard has provided (and there’s a lot more) is clear; the trial court has no authority to assess fines or costs against an attorney in a criminal case.
Mason, rightfully so, and whether it suits our sensibilities or not, should have appealed the order to pay the costs of the state’s motion for sanctions, and, the appropriateness of that has nothing to do with, Justice for Caylee and it has no bearing on how much we might dislike this defense.
I’ve asked this on a couple of sites and can’t seem to get an answer.
I know CA & GA are not permitted in the courtroom until they have testified and are excused. What I want to know is can they sequester them before their testimony, from watching the trial on TV/media untl then? If they can watch the trial at home, then keeping them from the courtroom would be moot.
You are referring to what is known as the Rule of Sequestration, which can be invoked by either party during a hearing or trial, and prohibits witnesses from talking about the case in general, or what they testified to. Unfortunately though, the rule – as far as I am aware – only applies during the pendency of a trial or hearing, and ceases to be in force once the proceeding (not the case). concludes.
So, yes if the rule was invoked during the trial, George and Cindy would be instructed not to talk about the facts of the case during the trial. But the rule does not prohibit them from talking to each other or even about Casey in general.
More important to the people who seemed obsessed with technical legal requirements, it is only enforceable by the State or the Defense.
I see where Richard has presented the case law and since he is a Florida attorney who am I to disagree.
That being said couldn’t Judge Perry just withdraw the order, then place Beaz in contempt and follow the proper procedures for contempt?
Mr. Hornesby,
Your article is well written and very thought provoking.
I’ve never had to work so hard in trying to understand this mess but I finally think I see where you are coming from. Too bad Casey doesn’t have you for a defense lawyer and I’m sure Baez would have appreciated your assistance instead of Mason on this matter. I have read the cases you have provided, as well as others which was pain-stakingly slow because I only have dial-up internet(Ugh!!).
I think I recall Judge Perry citing something (possibly a statute)and discovery rule at the hearing (I can’t go back to watch due to stupid dial-up) but I agree there is no citing of statutes or case law in his Order to grant state’s motion for sanctions to support the basis for his decision even though he gives a very detailed account of the percieved “bad faith conduct”.
But suppose Judge Perry had also cited in his order that he was imposing sanctions under Florida Rule of Civil Procedure 1.380, F.R.C.P 3.22, sections 57.105(3) Florida Statutes(2008), and Moakley v. Smallwood, 826 So.2d 221, 223-27 (Fla. 2002), for Mr. Baez’s “bad faith conduct” citing Preamble to Rules of Professional Conduct, R. Regulating Fla. Bar (“A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”).
Would the Judge citing Statutes, Rules, or Case Law make any difference or would it still be wrong, in your opinion?
I agree with you that Two Wrongs Don’t Make a Right, so I’m trying to view opinions from all sides. I’m glad I never wanted to become a lawyer because to me the laws are so confusing, but I do think you are a very good lawyer.
Mr. Hornsby,
Sorry for misspelling your name in my last post.
http://www.wesh.com/pdf/26561606/detail.html
Judge Perry denies motion
Semantics……think not, succinct & concise ! AVVO score impact, perhaps so.
What say you Richard?
Well, considering Mason did not raise any of my issues or case law, or more importantly DID NOT APPEAL Judge Perry’s decision, all that Judge Perry’s Order denying the motion for reconsideration means is that Judge Perry thinks that Judge Perry was right – DUH.
However, if the issue was appealed and the appellate court upheld Judge Perry’s order, then I would probably be ready to admit I was wrong.
Remember, the problem with taking a position that is black or white is that only one position can be right.
Or at least only one person can be right at a given moment in time, because there’s always appeals, ammendents,new laws, etc.
So Sometimes when you’re right, you’re wrong, or vise-versa. Go Figure.
Hmmmm…. credit point goes to Perry. Really, if Cheney by now can’t cite one issue to argue [which he did not] for Baez, then what the hell happened to 40+ years as a criminal litigator,duh? Red Herring Alert…
Guess this is a wait/see answer. Baez needs to lick his wounds and fade to black.
Polly shake some of that old kidney before sticking your neck out…WTH are you talking about? LOL smirk
Kate, what are you talking about??? LOL
The order is clear and succinct in that it affirms, “the court did not hold counsel in contempt,” which is the very premise that Richard holds out as the reason the good judge had no authority to order or assess a fine as to attorney costs.
Yeah, what he/she said!
Respectfully Chief Judge Perry decided he was right? This sounds more like,
experience/knowledge of the law. Per my reply ,my hunch is that HHJP knows the ropes!
Mason spit-balling is as old as his excuses. At any rate, thank you or a civil reply.
I guess law is kind of like perspective, depends which side of the fence you’re on, unless you’re just sitting on the fence. Makes sense why there are prosecutors, defense lawyers, judges, and appellate judges.
I think there were 3 hearings concernning compelling discovery of defense experts. Too bad it’s not like Lemon Law with cars where Baez could just be replaced. Even though Casey had previously told the court she was happy with Baez, can she fire him right before the trial? That would definately affect the trial date, would it not?
I still wish the Judge had included a case law in his order, but like Mr. Hornsby pointed out… Baez should have appealed. What I’d like to ask is, can Baez still appeal? Or since he paid the fine, is the issue over?
Interpretation is more like it. Suddenly Mason does not know which end is up? Law is Politics, and Politics is Law. What doesn’t jibe is the BS acting, and that’s what they all do. Somewhere in what Richard is citing, HJP did not omit knowing ALL eyes are watching @ both ends of the spectrum. Richard, cited some good points, however, Chief Perry is a smart man, not to be outdone a critical omission that would bite him in his azz..down the pike. Everything thus far, Judge is dotting the i’s and crossing the t’s. You have to ask the question, just why did Mason do his bidding, and why haven’t we seen a counter challenge? Best answer: no legal standing. Sanctioned Baez will now have AVVO demerits, not good!
My fav Judge Perry, “Civil Lawyers are looking for new ways to make MONEY”
dig… gulp
The problem for Baez and Mason is that they had the opportunity and time to respond. They didn’t respond to the judge’s decison, they responded to ‘contempt’ and didn’t argue what Hornsby did. I’m not saying that they would have won had they used his argument, however they might have. No matter, they didn’t. But the judge is smart. He ruled after, and based on, how the defense responded to the sanction. I don’t think this will be an issue for appeal, although I’m not a lawyer. This didn’t directly affect the defendant, so there’s that. I don’t think that you can later say that you didn’t understand the law as a valid appeal reason, on a judge’s mild ruling, (even for your own hide).
Too bad Baez/Mason didn’t argue what Mr. Hornsby argued in his article, now we’ll never know how the Judge would have ruled in that event. I love a good debate/argument, as long as it is supported by something other than the debater’s opinion, or whinning. I’ve even change my opinions at various times when presented with certain information or facts. So I guess the lesson could be, if you’re going to make an argument, make sure it is superb….otherwise just APPEAL
I too have always heard that ignorance of the law is not a defense.
With Mason’s rep and history, ineffective assistance of counsel won’t work down the road either (for Casey, at least on this issue). Mason pretty much called Baez out, in terms of perceived incompetence. He was ‘righting the wrong’, in real time, with that letter, before trial. He was saying, ” I’m on top of it”, and ” I know that Baez screwed up because he is young”. And he is the death penalty qualified lawyer.
sorry, Kate…you talk in riddles. What game do you think CM is playing – red herring alert? – and what the heck does my kidney have to do with anything?
I don’t know how it is you think I’m sticking my neck out?
“she” Richard, lol
you tell me, your arrogance is showing. What is the problem with a riddle or two…lmao Rhetorical posts deserve rhetorical answers.
Passive Aggressive Polly: Waiting……. thought so!
Check Back Monday….rotfl
~~Too bad it’s not like Lemon Law with cars where Baez could just be replaced.~~
Too funny!!! 🙂
you’re too smart for me, Kate 🙂
Oops, I’m getting moderated now. I’m finished with comments. Good luck to you all. Bygones.
~~Richard, cited some good points, however, Chief Perry is a smart man, not to be outdone a critical omission that would bite him in his azz..down the pike.~~
Umm, Richard cited case law, a little different than mere “good points”.
So, do you think the other judges who were reversed on this particular issue were stupid? No need to answer, THAT was a rhetorical question.
Richard, I remember seeing an interview you did with WESH when the Defense got Judge S removed from this case. You predicted, can’t remember your exact words, that the Defense would “regret” having Judge S removed when Chief Judge Perry would now be on the case! LOL, one that most of us feel they “richly deserve.”
You called that right, Judge P appears “fed up with the incompetence of Baez, when it appeared, imo, that Judge P was patient & advising Baez what to do in the beginning as well as denying most of his MOTIONS.”
Do you think KC is really aware of how poorly her Defense Team is doing, with Baez keeping her isolated from everyone, who could really tell her without their letter being released to the public? Is she allowed to read the newspaper about her case everyday? She needs to at the least. I was surprised to see about a year ago an interview with a “Criminal Defense Attorney” that Conway had approached to represent KC. Of course he wasn’t interested, no $$$$ but lots of promises from the Anthony’s but KC is an adult, it is her choice. Seems the incompetence of the Defense isn’t lost on the Anthony’s, I can’t believe Mason continues to get new client’s, you just gotta wonder if they have watch his performances in this case, confused, blaming, uninformed on the case before he joined, mumbling. jmo.
Richard,
I don’t understand what you mean that the fine that Judge P gave wasn’t legal.
Florida bar 3.220(n)(2) It says “may” include contempt. Also, he can asses costs of opposing party.
n) Sanctions.
(1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not dis- closed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
(2) Willful violation by counsel or a party not represented by counsel of an applicable discovery rule, or an order issued pursuant thereto, shall subject counsel or the unrepresented party to appropriate sanctions by the court. The sanctions may include, but are not limited to, contempt proceedings against the attorney or unrepresented party, as well as the assessment of costs incurred by the opposing party, when appropriate.
1989 amendment:
Renumbered (n)(2) is amended to provide that sanctions are mandatory if the court finds willful abuse of discovery. Although the amount of sanction is discretionary, some sanction must be imposed.
Simply put, there is a distinct difference between “costs” and attorney’s fee. Costs are things such as court reporters, transcripts, filing fees, possibly even room rentals, that a party incurred that otherwise would not have been incurred because of the violation. Attorney fees are just that: attorney fees paid by the opposing party to litigate a matter. However under Florida Statutes, not rules of procedure, attorney fees can only be imposed under very specific circumstances.