On September 28, 2018, Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit, as the sitting motions judge in an appeal, released an order addressing the common misuse of judicial notice requests, “in the hope for forestalling other, similar applications, which recently have increased in frequency.” In re: Lisse, 18-1866, 18-1889 (7th Cir. Sept. 28, 2018). Judge Easterbrook’s order in In re: Lisseprompted me to write this note, expanding on this issue as it relates to Florida law, as we have witnessed problematic attempted misuse of judicial notice numerous times in the past several years.
In re: Lisse specifically holds that a power of attorney and a motion filed in a state court record were not appropriate subjects of judicial notice in an appeal. Judge Easterbrook noted that if the documents were offered simply to show that they had been filed, judicial notice might be appropriate in that limited context; however, otherwise, judicial notice was inappropriate. With respect to the power of attorney, Judge Easterbrook noted as follows: “Is it authentic? See Rules 901 to 903. Are the four signatures real or forged? . . . . Is it the original or perhaps a duplicate admissible under Rule 1003? Is the document even relevant? See Rule 402. If the power of attorney had been submitted in this proceeding it would not be subject to judicial notice. It does not get a privileged status because it was filed in a state suit.” More, Judge Easterbrook, demonstrating the disfavor of unnecessary motion practice by appellate courts, noted that the filing of a separate request for judicial notice in an appellate proceeding is inappropriate, and that the “right place to propose judicial notice . . . Is in a brief.” These are all apt observations which carry over to practice within the courts of the State of Florida.
As Judge Easterbrook noted, misuse of judicial notice requests have become far too common. Practitioners who do not understand the proper use of judicial notice requests can cause unnecessary resources to be expended in litigation, or worse, severely prejudice their clients’ cases by placing undue reliance on the availability of judicial notice of evidentiary facts at trial. It is important to combat any inappropriate judicial notice requests in litigation, as such requests can be utilized by parties in an effort to evade the formal rules of evidence.
In Florida, documents from other legal actions are not admissible simply because they are part of a court file somewhere. In BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So. 3d 874 (Fla. 3d DCA 2010), the Florida Third District Court of Appeal determined that it was inappropriate for the trial court to take judicial notice of a bankruptcy court order. BDO Seidman, 38 So. 3d at 880 (“BDO argues that the trial court erred by taking judicial notice of a bankruptcy court order, and allowing that order to be shown to the jury. The trial court took the view that the facts determined by the bankruptcy court were properly admissible in this case. BDO’s objection should have been sustained.”)(emphasis added). “Inadmissible evidence does not become admissible because it is included in a judicially noticed court file.” Id. “Although a trial court may take judicial notice of court records, it does not follow that this provision permits the wholesale admission of all hearsay statements contained within those court records.” Id. “[T]here has been a ‘seemingly widespread but mistaken notion that an item is judicially noticeable merely because it is part of the ‘court file.”‘ Id. See also Rubrecht v. Cone Distrib., Inc., 95 So. 3d 950, 959 (Fla. 5th DCA 2012)(“A statement made in an appellate opinion cannot substitute for proof of the fact.”). For example, transcripts filed a separate action are also impermissible hearsay, unless properly authenticated. Delong v. Williams, 232 So. 2d 246, 247 (Fla. 4th DCA 1970). Generally speaking, except for under limited circumstances with proper authentication, unsworn pleadings from another action are not admissible as evidence, and thus, it may be inappropriate to simply admit the contents thereof into evidence through the judicial notice process. Sea Cabin, Inc. v. Scott, Burk, Royce & Harris, P.A., 496 So. 2d 163 (Fla. 4th DCA 1986); Florida Power Corp. v. Zenith Indus. Co., 377 So. 2d 203, 204 at note 1 (Fla. 2d DCA l 979)(“[P]leadings in one action are admissible in another action only under certain circumstances and for certain purposes not pertinent here.”); Tierra Builders, Inc. v. Schwimmer, 511 So. 2d 638, 639 (Fla. 4th DCA 1987 (although “any error in admitting the counterclaim filed by [appellant] in another action was harmless,” dissent noted that “[u]nder Florida law unsworn pleadings from another lawsuit are not admissible unless it is demonstrated that the party against whom the pleadings are to be used supplied the information contained therein”)(emphasis added); Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So.2d 4, 5 (Fla. 4th DCA 1980) (“[n]either a complaint nor a counterclaim is admissible in evidence to prove or disprove a fact”). While judicial notice cannot be used as a substitute for presenting admissible evidence, the fact that a pleading was filed would be an appropriate subject of judicial notice.
However, In re: Lisse also provides that state court orders which are part of the public records of the State of Wisconsin were “appropriate subjects of judicial notice.” In re: Lisse, 18-1866, 18-1889 (7th Cir. Sept. 28, 2018) (citing Menominee Indian tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998); Fed. R. Evid. 901 (b)(7). While I believe that this ruling is appropriate if limited to simple judicial notice of the fact that an order was entered by a state court, as recorded, the ruling is problematic as worded. That is, the contents and adjudicative facts contained within an order in another action should never be automatically admissible in a second case through the use of judicial notice, except to show that the order exists. To hold otherwise would result in litigants being held accountable for the handling and litigation of actions to which they were not even involved, which would be grossly inappropriate.
If you are faced with litigation, it is important that you hire an attorney well-versed in the rules of evidence, and in tune with developing legal issues. Jeffrey Law, PA, stands ready to assist. Contact us at: [email protected] or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com. Mr. Jeffrey has been awarded an AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html.
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