Don’t rely on the mercy of the court

Article Highlights

  • The trial judge in a recent foreclosure case felt sorry for the homeowner and granted a continuance of foreclosure sale, because she did not want to see “anybody lose their house.”
  • Trial judges have a great deal of discretion in both managing and deciding cases.
  • I lost a lot of money in a business deal and want to sue my partner


I lost a lot of money in a business deal and want to sue my partner. My attorney says I do not have a good case and suggests it would be a waste of money to pursue. I want to get the case to a judge because I am sure the judge will have sympathy for my situation and it will help. My attorney says a judge’s sympathy will not be enough. What do you think?


Trial judges have a great deal of discretion in both managing and deciding cases. Judges’ decisions are given considerable latitude for a number of reasons. They are in the best position to see a witness, and therefore, give appropriate weight to the witness’ testimony. There is also a need for finality and certainty with respect to a trial judge’s rulings, so that parties do not appeal, in the hope that a different judge will reach a different result.

Our judicial system is based on the concept that a final decision is final, but appeal is available because it is also recognized that nobody is perfect. Appeal is difficult, as the standard for reversal in most cases is clear abuse of discretion by the trial judge. That means the person appealing must convince the appeals court no reasonable person could adopt the judge’s decision under the circumstances of the case.

Over the years, Florida courts and the legislature have whittled away at the discretion of trial judges. In part, this whittling is an effort to ensure consistency. In part, whittling may also be attributed to belief that the legislature or appellate judges know best.

Trial judges have considerable discretion in dividing assets and awarding alimony in divorce cases. However, the legislature has adopted child support guidelines based on income of the parent, from which judges may not depart without good cause and specific findings. Similarly, criminal sentencing guidelines are set by Florida’s Supreme Court, with a stated purpose of establishing uniform standards to guide sentencing judges in the sentence decision-making process. The goal is to try and remove emotion and bias from the sentencing process, so a criminal defendant will receive the same sentence for a particular crime, no matter which judge pronounces sentence. Many judges believe the criminal sentencing guidelines tie their hands too tightly.

Rarely does a judge publicly express a basis for decision as sympathy, but it has occurred. And when it does occur, appellate courts view the expression of sympathy as a factor in determination of abuse of discretion. The trial judge in a recent foreclosure case felt sorry for the homeowner and granted a continuance of foreclosure sale, because she did not want to see “anybody lose their house.” The appellate court explained that trial judges generally have broad discretion in granting continuances and postponements, but the ground of benevolence and compassion is not a lawful basis for granting relief to one side at the expense of the other. The court noted that is particularly true when the foreclosure statute mandates a sale date be set not less than 20 days or more than 35 days after the date of the foreclosure judgment. The trial judge refused to set aside the judgment and granted a trial in order to give the plaintiff “the break of his life.” The appellate court reversed.

In Nordberg v. Green, Roger Green signed a contract to sell his home. Before closing, he married Nancy Green and both Roger and Nancy signed the warranty deed to Nordberg. Nordberg later discovered a $99,000 lien against the property and he sued the Greens under warranty of title. The trial judge entered judgment against Roger Green, but excused Nancy Green from liability, because it would be inequitable to enter judgment against her solely because she accommodated her husband and signed the deed.

The appellate court reversed the trial judge in the Green case, pointing out that as a signer on the deed, Mrs. Green was liable under its warranties and that a trial judge could not decline to follow controlling law because the judge considers its application inequitable in a particular case.

In Arango v. Arango, the trial judge’s reduction of attorney’s fees awarded to the spouse of an attorney on ground of “professional courtesy” was reversed.

In Flagler v. Flagler, a trial judge was admonished that he had no power to issue orders he considered to be in the best interest of “social justice,” without regard to established law.

Relying on a judge’s sympathy for victory is not generally good strategy. However, you may want to obtain a second legal opinion as to the merits of your case before throwing in the towel. The best attorneys and judges can make mistakes, and opinion as to the merits of the case can be affected by the attorney’s personal experience and the information provided by the client. A second opinion after an initial rejection should be considered.

Questions for this column can be sent to William G. Morris, e-mail or by fax, to (239) 642-0722 or the Marco Island Eagle, attention: It’s the law. Other articles of interest can be viewed at

William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

© 2009 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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