Litigation Support

On August 11th, Miami-Dade Circuit Judge Scott Silverman, after earlier declaring a mistrial, dismissed with prejudice a civil fraud lawsuit involving the sale of a condo tower. What made this decision interesting is his reason: a boss sent text messages to his employee, who was then testifying on the witness stand. This was done surreptitiously as the judge and lawyers conferred in a sidebar conference.

Sky chief executive officer Yizhak Toledano sent the  messages to the company's chief financial officer, Gavin Sussman. In May, the judge ordered a mistrial when a spectator alerted him to the misconduct. Clearly incensed, the judge questioned Toledano and Sussman, who admitted to the texting. The judge then ordered the messages to be read aloud and into the record.

Toledano's texting "was underhanded and calculated to undermine the integrity of this court and the legal process," the judge wrote in his dismissal order. "Regretfully, plaintiff through its unacceptable conduct has reached into the court's quiver of sanctions, drawn the bowstring taut and aimed the arrow at the heart of its own case. This court has justifiably released the string."

He also wrote "Plaintiff waited until the court and the attorneys were preoccupied so that its conduct would go undetected," the dismissal order said. "Plaintiff took what scant few moments it had to try to secretly sway the witness' testimony."

Silverman awarded attorney fees and costs to the defense and referred the financial issue to a general magistrate.

Curiously enough, Sussman appears to be a guy who just doesn?t learn. Two months before the trial, he improperly texted a witness during a deposition and was reprimanded by the magistrate.

Silverman said he took the previous conduct into account. No doubt.

With a nod of thanks to Sir Walter Scott, ?Oh what a tangled web we weave when first we practice to deceive.?

IMHO, Lady Justice was well served here.

E-mai: snelson@senseient.com        Phone: 703-359-0700

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