At last week’s hearing in Miami, the plaintiff in a commercial case won a victory of a very strange sort—when the judge dismissed his case he didn’t simultaneously throw the plaintiff in jail.  But the judge referred the case to a General Magistrate, so stay tuned for further developments.

Miami Dade Circuit Judge Scott Silverman declared a mistrial in a commercial fraud case in May when the Plaintiff, Yizhak Toledano was seen by a court spectator sending text messages to the witness, COO Gavin Sussman, during a sidebar conference while the witness was still on the stand.  Now the fraud suit has been dismissed by the judge, who wrote a scathing rebuke to Plaintiff for his conduct, and sanctioned Plaintiff for Defense fees and costs.

What makes the whole situation the stuff of magistrate referrals and jail terms? Improper witness communication can be inadvertent or careless, but not so in this case—it appears to be the way they get things done.  The witness in this case had already been reprimanded by the court two months earlier for texting another witness in the case during a deposition.  These seem to be people that don’t play by the rules or take oaths of testimony seriously.

According to published reports, the judge essentially said that the Plaintiff’s conduct destroyed whatever merit their case had, and “Nothing this judge has seen holds a candle to plaintiff’s egregious and deliberate attempts to subvert our justice system”.

Not that these witnesses would care, but my favorite book on witness preparation is Daniel Small’s “Preparing Witnesses”, now in the second edition, published by ABA Press.   A short volume, it is written for both attorneys and witnesses, and offers clear and sensible guidance that we have found useful for many years.  Of course, we would urge Mr. Small to add a new section for the next edition, perhaps entitled “Things that no one should have to tell you not to do”.  The new section will end with a short paragraph on “What happens if we have to tell you twice”.