VEXATIOUS LITIGATION

A Few Not Guilty Verdicts . . . .

For a number of years, the University of Florida College of Law and The Florida Bar co-sponsored a week-long trial practice training for “baby” prosecutors and public defenders at UF, during the week between summer and fall session. A hundred or so young lawyers from across the state, along with forty volunteer faculty members drawn from prosecutors’ offices, public defender offices and private practice volunteered their time to lead small groups, working with students all day to shape the next generation of trial lawyers.

This being a large group of lawyers, tall tales at cocktail parties were inevitable. A law school classmate who is one of the best criminal defense attorneys I know was recounting his success in a murder trial when a rather conservative, hard-line but excellent trial-lawyer prosecutor chimed in with utter disbelief, “What? The State Attorney tried a murder case they couldn’t win?”

I think of that line often these days, in my third stint at the fabulous Jacksonville Public Defender’s Office. The State should not be foolhardy enough to take a weak case to trial, but in eight out of ten of the last cases our office tried—both felony and misdemeanor—not guilty verdicts were returned. In the most recent case, the client had a video of the complaining “victim” coming after him first, and even after seeing that the State persevered. Pleas to the higher-ups in the State Attorney’s Office went unheeded. After a day of jury selection and a day of trial, another not guilty verdict!

In civil litigation, a party who pursues a futile course of action is liable for costs and fees of the other side if the litigation fails, and especially so if the litigation is unfounded or vexatious (love that word!). Until there can be sanctions against the prosecuting attorneys for pushing unfounded cases forward, they will continue to do so. Reduce their budgets? Make them wear a scarlet letter? There is no good solution other than responsible leadership and professional mentoring. In the meantime, I’ll take all the not guilty verdicts out there.