Attorneys are paid for their words, so it’s no surprise that they say a lot. In court, much of attorney talk is framed as legal argument. But often, attorneys are making statements about facts, conversations they’ve had with other attorneys, or recent non-privileged information about witnesses or clients. When attorneys talk about these personal facts rather than the law, what is the value of their word? What is its evidentiary weight in court?

Under Florida law, there should be general transparency and candor when discussing non-privileged factual matters, such as attorney coordination of litigation-related events, client travel for proceedings, and so on. See, e.g., Hays v. Johnson, 566 So. 2d 260, 261 (Fla. 5th DCA 1990) (“all counsel who appear before this court must be truthful and fair . . . an attorney is first an officer of the court, bound to serve the ends of justice with openness, candor and fairness to all”); Merkle v. Guardianship of Jacoby, 912 So. 2d 595, 600 (Fla. 2d DCA 2005) (even during the pendency of an appeal, the duty of candor imposes an obligation on counsel to notify the Court of any development that may conceivably affect the outcome of the litigation).

[KEEP READING BELOW PHOTO]

Under Florida law, an attorney’s statements, as an officer of the court, can be admissible evidence on personal factual matters and non-privileged communications, such as personal coordination of a witness’s travel and location. Fishman v. Liberty Assocs., Inc., 196 So. 2d 493, 496–97 (Fla. 3d DCA 1967) (holding statement that witness had departed and was out-of-state, made by attorney as officer of the court at time of presenting deposition at hearing, was adequate to establish those facts even though it lacked sworn testimony or corroborating witness statement); see also Hutchings v. Liles, 86 So. 3d 1279, 1281 (Fla. 1st DCA 2012) (holding that the representations of counsel as to deposition and witness location were sufficient to serve as evidence); Christopher’s, Inc. v. Podolnick, 458 So. 2d 777, 777 (Fla. 4th DCA 1984) (holding defense counsel’s representations as to witness’s residence, travel, and procurement for testimony were proper and sufficient evidence).

Under Florida law, a party or attorney cannot benefit from failing to provide to the Court all information and background circumstances discussing in court, where not privileged. Id. The Court should not reward or promote any lack of transparency as to the straightforward discussion of non-privileged factual matters, as provided by attorneys in open proceedings. Dilallo By and Through Dilallo v. Riding Safely, Inc., 687 So. 2d 353, 355–56 (Fla. 4th DCA 1997) (an attorney cannot benefit later on appeal from withholding the full information the trial court needed to determine the issue); City of Miami v. FOP Miami Lodge 20, 571 So. 2d 1309, 1318 n.10 (Fla. 3d DCA 1991) (appellate courts can take judicial notice of vital adjudicative facts, even if first made on appeal); Hays at 261 (“an attorney is first an officer of the court, bound to serve the ends of justice with openness, candor and fairness to all”); Merkle at 600 (even during the pendency of an appeal, the duty of candor imposes an obligation on counsel to notify the Court of any development that may conceivably affect the outcome of the litigation).

Under Florida law, if those statements are in any way affected by contradictory statements from attorneys arguing a case, then a court can turn to records concerning facts, coordination, notice, and knowledge. Dilallo at 355–56 (an attorney cannot benefit later on appeal from withholding the full information the trial court needed to determine the issue); F.O.P. Miami Lodge 20 at 1318 n.10 (appellate courts can take judicial notice of vital adjudicative facts, even if first made on appeal); Hays at 261 (“an attorney is first an officer of the court, bound to serve the ends of justice with openness, candor and fairness to all”); Merkle at 600 (even during the pendency of an appeal, the duty of candor imposes an obligation on counsel to notify the Court of any development that may conceivably affect the outcome of the litigation).

In other words, when an attorney speaks out in court, it might not just be billable legal argument. If you have questions about the evidentiary value and weight of attorney statements in court, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.