Originally Published in Law360 - May 20, 2013.
David M. Gersten, former chief judge in Florida's Third District Court of Appeal, chairs Bilzin Sumberg Baena Price & Axelrod LLP's appellate practice, and is a partner in the litigation group in Miami. He represents clients in litigation and appeals in many areas, including labor, administrative, probate and commercial law. He also often serves as a mediator and arbitrator in complex cases.
Q: What is the most challenging case you have worked on and what made it challenging?
A: It was one of my most challenging cases while serving on the bench in the felony division. This was during the 1980s at a time when Miami was ignited by race divide, riots and police shootings. I had a particularly difficult manslaughter case — where a deputy from the sheriff’s department was charged with manslaughter for shooting a young black teen. The case hit me on a very emotional level, but what really got to me was when the defense attorney decided there would be no black people allowed on the jury. At that time, there were no laws protecting against discrimination during jury selection, but I also knew that this move went against my own moral compass and sense of justice. Since there was no case law to support me, I invoked a very old doctrine — “Manifest Necessity” — to enable me to strike the defense attorney’s measure. This doctrine dated back to the 1700s but had never been used in this capacity, to my knowledge. Ultimately, the police officer was convicted and it really reaffirmed my trust and faith in the justice system.
Q: What aspects of your practice area are in need of reform and why?
A: There is an overall feeling or perception among many trial judges that certain types of rulings will not be upheld on appeal. In turn, trial judges are reluctant to make certain rulings that could be made. A classic, but not exclusive, example is a ruling on summary judgment. Some trial judges feel that if they grant summary judgment, they will see the case come back after reversal on appeal. So, rather than dispose of the case on summary judgment, the judge can legally deny summary judgment (not error) causing the case to linger on their audit until ultimately resolved at trial or the parties settle. To me, the simple answer is better communication from the appellate court to the trial court that trial courts will be backed up (not reversed) when the trial court follows the law. This is easily accomplished by the appellate court writing an opinion affirming summary judgment rather than issuing a PCA (per curiam affirmance), which has no precedential value and may only have meaning to the parties involved. Increasing the lines of communication between the tiers of the court would help create a more efficient legal system.
Q: What is an important issue or case relevant to your practice area and why?
A: An important issue is the practice of ethics, which is something I try to teach on an ongoing basis, be it through my firm, the various CLE courses I teach, or through my capacity as a professor at St. Thomas University. I don’t know why, but civility in the law is becoming more of a rarity than the norm today. Appellate judges can play a greater role in enforcing ethics and professionalism in the practice of law by taking a top-down approach. For example, through their published opinions, the appellate court can send the message through their opinions that they will not hesitate to back up trial judges who sanction rule/ethics/professionalism violations. This will not only empower trial judges to sanction for rule/ethics/professional violations, it will also create a stronger judicial system for ensuring that the standards of the profession as a whole are followed. After all, practicing law is a sacred honor that more lawyers should appreciate.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: I have always loved working with Paul Huck Jr. (Hunton & Williams). He is one of the most professional, ethical and friendly attorneys I have ever had the pleasure of working with. I have also always admired Jose Garcia-Pedrosa (solo practitioner). And most recently, I have had the opportunity to work with Daniel Espinosa and Jesmany Jomarron (Espinosa Jomarron), who are both great up-and-comers and former students of mine. I love seeing my former students find success — there is nothing greater than knowing you are passing the torch to qualified hands.
Q: What is a mistake you made early in your career and what did you learn from it?
A: While I have no doubt made my fair share of mistakes, I don’t believe in regrets. I have always tried to learn from them and move past them. If I had to relive my life over again, I wouldn’t change a thing. I have been very blessed both personally and professionally.