In honor of Black History Month, three Tampa, Florida, Inns joined forces with the Greater Tampa Jack and Jill Associate Group to collect over 700 books for the students of Edison Elementary, ensuring every child took home at least two books.

Due to the pandemic, the C.H. Ferguson-M.E. White American Inn Court, the Bruce R. Jacobs-Chris W. Altenbernd Criminal Appellate American Inn of Court, and the Stann Givens Family Law American Inn of Court were unable to hold their annual joint holiday celebration and toy drive. Undeterred, the Inns remained committed to continuing their tradition of community service, particularly to Tampa’s children.

While volunteering for a separate Hillsborough County Public Schools’ activity for Black History Month, Ferguson-White Inn member Jon Philipson, Esquire, learned about Jack and Jill’s planned book drive and suggested to pupillage group leader U.S. Magistrate Judge Julie Sneed an online book drive to support Jack and Jill’s efforts.

Sneed and Ferguson-White Inn President Judge Samantha Ward quickly solicited the support of other Inns. Working as a team, the three Inns developed a seamless system to achieve an amazing result for the Tampa Bay community. Taking the list of books provided by the school, Jacobs-Altenbernd President Chelsea Simms, Esquire, created an Amazon registry to facilitate book purchases. Givens Inn President Eric Boles, Esquire, promoted the book drive on social media to generate additional interest. The Ferguson-White Inn collected and organized the books.

After initially collecting 262 books, the three Inns intensified their efforts, more than doubling that number two weeks later. Collecting books from attorneys and friends beyond the Tampa Bay community, these Inns made the Black History Month Book Drive for Edison Elementary a national effort. 

© 2021 This article was published in the July/August 2021 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.


The Bencher- July/August 2021, p. 9

Black History Month Book Drive for Edison Elementary


Picture of students holding donated books



Don't Lose Your Appeal: Ethics and Civility in Criminal Appellate Law

The Bencher-July/August 2011

By Matthew D. Bernstein, Esquire and Maureen E. Surber, Esquire

The Bruce R. Jacob Criminal Appellate American Inn of Court in Tampa, Florida, focuses entirely on one specialty-criminal appeals. The Inn's members are all government employees, including assistant public defenders and assistant attorney generals, who together are responsible for more than 1,300 yearly criminal appeals before the Second District Court of Appeal of Florida. Appellate judges and appellate staff attorneys are also active members of the Inn. As the Inn is a teaching Inn, several students from Stetson University College of Law round out the membership. Because the attorneys consistently face the same opposing counsel and practice before the same appellate judges, ethical practice and professional civility are paramount. Criminal appellate practice is divided between brief writing and oral argument; ethical standards and professional civility are expected in both.

Unless a party requests oral argument, most cases proceed only on the parties' briefs. When writing a statement of the facts, ethics dictate that the facts be written fairly and accurately. Although professional ethics demand zealous advocacy, attorneys must resist the temptation to either overstate the facts or to omit unfavorable facts. "Overstating the facts is not only ethically improper, it is a poor tactic. An exaggerated statement of the facts will cast doubt on the correctness of the arguments and the credibility of the attorney who presents them." Philip J. Padovano, Florida Appellate Practice § 15:17 (2010 ed.). In addition to being unethical, omitting pertinent (but perhaps unfavorable) facts also provides opposing counsel a prime opportunity to highlight the omission. Therefore, such omissions will not only emphasize bad facts but will also tarnish credibility and trustworthiness.

Sometimes rules of professional ethics overlap with common-sense civility. Impugning opposing counsel and the trial court violates both. As a rather egregious example, an attorney appearing before Florida's First District Court of Appeal referred to opposing counsel as "fatuous," referred to the trial court's findings as "baloney," and also accused opposing counsel of fabricating evidence. Thomas v. Patton, 939 So. 2d 139, 141-142 (Fla. Dist. Ct. App. 2006). The appellate court noted the offensive remarks, awarded opposing counsel attorney's fees, and concluded, "Appellant relies on such accusatory language presumably because no law supports appellant's arguments." Id. at 142. Just as the personalities of trial attorneys are revealed when reading through a trial transcript, an appellate brief speaks volumes about an appellate attorney's personality. Also, as demonstrated above, judges may detail a party's unethical conduct in a published opinion; and no attorney wishes to be remembered for unethical conduct. However, all attorneys would agree that it would be far better to be remembered for acts of civility, such as alerting opposing counsel to an inadvertent clerical error in a brief.

Ethical issues also arise in the argument section of the brief. Counsel must acknowledge appropriate issues for appeal, and, exercising professional discretion, counsel must abandon meritless issues. In addition, the argument should contain all binding caselaw that is pertinent to the argument. However, ethics demand that an attorney candidly acknowledge precedent that does not support a position. Further, trying to hide or ignore contrary caselaw backfires when your opponents emphasize it in their brief.

Oral argument also remains an important part of appellate advocacy, and, while all lawyers are part of an adversarial system, civility among the parties during oral argument remains essential. But appellate lawyers should not shrink from combat. The battle must be fought with lucid argument and precise logic; no judge will listen to an abrasive or petulant attorney for more than two minutes, and an attorney lacking civility will not command the respect of any fellow attorney.

Ethical conduct during oral argument may seem, to some, a matter of common sense and mother's manners, yet a couple of general statements can do no harm. First, appellate attorneys would do well to remember the old poolroom signs: No gambling. No spitting. No swearing. The modern appellate practitioner's list could also include these obvious, yet sometimes forgotten, admonitions: No cell phones. No head-shaking. No grunting or noisemaking to express disagreement or displeasure. No screaming. Second, appellate attorneys must answer the judges' questions during oral argument. An appellate judge will (more likely than not) look unfavorably upon any evasive answers. Judge Padavano of Florida's First District Court of Appeal clearly outlines counsel's duties during questioning:

In modern appellate practice, the questions asked by the judges usually present the best opportunity for advocacy. All questions from the bench should be answered candidly at the time they are asked. It is not a good practice to advise a judge that the point raised in the question will be addressed later in the argument. Nor is it a good idea to avoid answering a question for any reason. Even a question that has little bearing on the case should be answered, if possible, but a diplomatic explanation that the point of the answer does not really diminish the argument would be in order.

Padavano, supra, § 16:5.

An anecdote from the Supreme Court of the United State's Guide for Counsel also illustrates the importance of answering every question in a courteous manner:

One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: "What is the difference between beer and ale?" The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom…. The Justice who posed the question thanked counsel in a warm and gracious manner.

Clerk of the Court, Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States 7 (2010).

Civility toward opposing counsel during oral argument also remains an indispensable part of appellate advocacy. For instance, if opposing counsel forgets to bring a copy of a brief or a case, there is no harm in providing an extra copy to your opponent; petty bickering has no place in oral argument. Oral argument provides a perfect forum for precisely framing the issues, and any experienced appellate attorney wants both their opponent and the court fully prepared. One federal judge has highlighted the importance of well-prepared argument: "The presence of live human beings in verbal combat engages the attention of judges and makes them think, question, discuss, and reconsider a case as can nothing else, including able briefs and judicial opinions on analogous points." Gilbert S. Merritt, The Decision Making Process in Federal Courts of Appeals, 51 Ohio St. L.J. 1385, 1386 (1990). Also, well-prepared argument aids in whittling the issue to its core; or, as Judge Merritt noted, "It is much easier to separate the wheat from the chaff after oral argument than before." Id. at 1387.

As part of its annual April meeting, the Bruce R. Jacob Criminal Appellate Inn hosts an oral argument on a pending case, argued by one assistant public defender and one assistant attorney general. This meeting allows the students of the Inn to witness both an actual oral argument and to experience courtroom civility firsthand. Thus, the Inn not only fosters civility among its practicing attorneys and the court but also provides a model for the students; as is often repeated in teaching Inns, practicing attorneys must lead by example. And while many of the students in the Inn will never practice criminal appellate law, the ethics and civility instilled by the Inn will serve them well in any practice area.

Matthew D. Bernstein, Esq. and Maureen E. Surber, Esq. both serve as Assistant Public Defenders in the Appellate Division of the Public Defender's Office in the Tenth Judicial Circuit of Florida. Both are active members of the Bruce R. Jacob Criminal Appellate AIC in Tampa, Florida, and Ms. Surber currently serves as the Inn's president.

© 2011 Matthew D. Bernstein, Esquire. and Maureen E. Surber, Esquire. This article was published in the July/August 2011 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.