By Meaghan Goldstein
Interview featured in the FALL 2022 Newsletter
Honorable Robert N. Scola, Jr. U.S. District Court Judge for the Southern District of Florida
Q. You were on the state court bench for 16 years before becoming a federal judge. What was your decision-making process when you applied for the federal bench?
A. I have to honestly say that I never really aspired to be a federal judge. I wanted to be a judge since I was 10 years old (my father was a judge up in Massachusetts) but when I moved to Florida, I thought I’d given up any chance since I wasn’t from here, didn’t grow up here, and didn’t go to law school here. Anyway, I thought it would be very hard to be appointed to be a state court judge, and it just seemed beyond any dream to be a federal judge. But once I became a state court judge, and I was getting good reviews from lawyers, I felt I knew what I was doing, and I saw that other state court judges had become federal judges, it seemed like a path that was somewhat attainable. So, I decided to apply for the first time back in 2002, and I didn’t come out of committee. Then I applied again in 2010, and Kathy Williams, Judge Jerald Bagley (another colleague from state court) and I came out of committee, and Kathy was selected. Then the second time I applied, a year later, Jerald Bagley again came out of committee with me, along with Magistrate Judge John O’Sullivan—great guys, great judges, great “opponents.” During the JNC, someone said, “You know, you came out of committee the last time, and probably going to come out of committee this time, who are the other two people we should send with you?” I said, “To be honest with you, I’d like you to send two convicted felons with me. It’s an honor to come out of committee, but I’m not doing this to come out of committee. I want to get the job, and you keep putting these highly qualified people like Kathy Williams and Jerald Bagley with me, it makes it hard for me to get it! Please, make my chances better.”
Q. Who swore you in after your Senate confirmation?
A. I was informally sworn in by my wife, Jacki, since she was a circuit court judge. Then at my actual investiture, I was sworn in by then Chief Judge Moreno.
Q. You and the other Judge Scola were on parallel paths for so many years. What was that like at home at night, first when the two of you were both sitting as state judges, and then when you made the move over to the federal bench?
A. I think it was more interesting for our kids. I was a judge for about eight years before Jacki became a judge and our teenage son at the time said “Oh, great, now we have two parents who think they know everything.” I said, “Listen, we knew everything long before we were judges, so that’s not going to affect anything.” We never served in the same division though. By the time she started I had left the criminal division and was in the family division, then she was in the criminal division for a long time and I was in the civil division, then I went back to the family division and she was in the civil division… so we were never really even in the same courthouse while we were judges together, but I’d come home at night and say “Let me tell you what happened today,” and she’d say “No, let me tell you what happened today!” But when I became a federal judge, I wasn’t really allowed to complain about anything because we both knew that this job was just a thousand times better. I loved being a state court judge, but in federal court, we have incredible facilities, incredible resources, three law clerks, the brightest young minds in America to help you, and about one-tenth the case load. So any time I wanted to complain I’d think, Jacki has a thousand more cases, she has no law clerks, there are times over there you can’t get pencils or paper or envelopes. It’s just night and day. So I’ve never been able to complain.
Q. Aside from the body of law, state versus federal, what were some of the biggest adjustments for you moving from state court to federal court?
A. I still have a calender from my first years here, where I highlighted all the time I was in trial, both criminal and civil cases. I had five trials that lasted more than two months in my first two years as a federal judge (that wasn’t uncommon back then) and in between those two-month trials were still the week-long trials and the three-day trials, it just seemed like I was always in trial. I knew criminal trials, and I had done civil trials for four years in state court, so the in-court stuff was really comfortable for me. That was not much of a change. What was a change was—if I was in state court in trial all day, I’d finish court and I was done. Here, if I’m in trial all day, I have three law clerks that are producing work for me to review. So I get off the bench, and then at night and on the weekend I have to turn to that work, catch up, stay on top of things. And even when you’re in trial with these long cases, as the judge, you still have to be in court for changes of plea, sentencings, TROs and other emergency hearings, civil matters, and so on. So that was the biggest adjustment, trying to figure out how to divide my time between the things I need to do on the criminal cases and the civil things the law clerks are working on.
Q. So you’d be on the bench all day, then dig your way out of your inbox, and still have a wife and kids to get home to.
A. Exactly. One of the things I always tried to do, whether as a lawyer or as a judge, was to not miss my children’s events. I tried to go to every tee ball game and flag football game, and I always made it except when I was in a jury trial. I just can’t tell 14 FBA South Florida Chapter Newsletter people, “Listen, we need to stop at 2:30 today because my son has a cross country meet,” so I did miss some. But only when I was in a jury trial. I try to accommodate the jurors more than anyone else. Yes, they’re summoned in, but the ones who wind up on a jury have somewhat chosen to participate in good faith, and it’s our obligation as judges to not make them waste their time. So if I can do a five-day trial in four days by starting on time, taking shorter breaks, moving other hearings to other days so I can stay concentrated on the trial—that’s better for everybody because now those jurors are only missing four days of work and four days away from their families instead of five.
Q. You’ve been presiding over trials for 27 years now. What’s the most memorable closing argument you’ve ever heard?
A. Ervin Gonzalez was a fantastic trial attorney who passed away tragically a few years ago. He had a case where his client was injured by a delivery vehicle for a chicken franchise, and the franchisee was supposed to have purchased a million dollars of liability insurance but hadn’t done that. The owners were two 23 or 24-year-old brothers, their dad had bought them the franchise to get them started, and they had no assets. And Ervin’s client was very seriously injured by the delivery vehicle and was suing the franchisor. So, instead of talking to a jury with these legal words—franchise, franchisee, franchisor—Ervin turned it into “Big Chicken” and “Little Chicken.” Big Chicken was the franchisor, and Little Chicken was the franchisee, and he just did a fantastic job showing the jury that Big Chicken had sufficient control over Little Chicken as to make Big Chicken liable. It worked.
I also had a trial with Alex Alvarez, who does a lot of tobacco cases. He’s just very genuine and compassionate, without being over the top or saying anything he shouldn’t say.
And overall, in the Southern District of Florida, we are blessed with a very qualified and experienced criminal defense bar. I think we have more criminal jury trials than most other places because we have criminal defense attorneys who don’t blink. We get into some trials and the government’s opening is basically, “The defendant was caught with a gun, and his fingerprints are on the gun, and his DNA was on the gun, and there’s a video, and he confessed,” and I’m just thinking to myself, “What the heck is the defense going to say?”
And then at the end of the case, I’m thinking, “The government could actually lose this case.” The defense bar, whether the private attorneys or the Federal Public Defender’s Office, they really have very talented and unafraid lawyers taking on the government.
Q. How often have you been surprised by a jury verdict?
A. Oh, I am the worst person to ask that. When my wife was a judge, 95% of the time she was right about what the jury would do with a case. But me?The longer I’m on the bench, the worse I get at predicting jury verdicts. My court reporters and my clerks are seemingly much more in tune. My first court reporter, Joe Milligan, he was right every single time, civil and criminal. I don’t know why I’m so bad at it.
I try not to ask myself “If I were making the decision, is that what I would have done?” and instead I ask “based upon the evidence, was that a reasonable decision for the jury to make?” It doesn’t matter if I would have had a different view, as long as the jury’s decision is reasonable based on the evidence before them. I’d say 99% of the time, I agree that the jury’s verdict is based on a reasonable interpretation of the evidence. As for that other 1% (fortunately it doesn’t happen often), those are cases where there is overwhelming evidence of guilt, no real defense, and for whatever reason, the jury finds the defendant not guilty. And at that point, there’s nothing I can do. Double jeopardy has kicked in.
Q. Have you ever had a jury return a guilty verdict that you didn’t think was a reasonable result based on the evidence?
A. Fortunately, in 27 years, I’ve only had one case where somebody was convicted and not only did I not agree, I was truly shocked. It was a battery on a police officer. I called counsel in and explained that, of course, I wouldn’t do anything the law didn’t allow me to do—but the conviction really bothered me and if there was a legal way to overturn it, I FBA South Florida Chapter Newsletter would. They came back a few days later and told me they’d resolved it themselves. So I withheld adjudication, imposed no sentence, and they resolved the case.
Q. It’s obvious that you love this job. What made you decide to take senior status now?
A. I think one of the problems with judges in general is that, even though this is the greatest job in the world, people get to the point where they’re burnt out, not enjoying the job, and they’re annoyed by things that happen on a daily basis. But they stay because they want 5 more years to hit a better retirement age, or they enjoy the prestige of being a judge, and they’re staying on the bench without giving their all and without enjoying it. By the time my senior status is effective, I’ll have been a judge nearly 30 years. I don’t want to be one of those grouchy old judges who’s annoyed by everything. I want to make sure that I’m still happy to be here every day. I always want people to leave my courtroom, win or lose, knowing they had a fair shake and that they had as good an experience as possible.
Q. What is senior status going to look like for you?
A. Well, senior status allows the President to appoint my successor, but I can still stay and work. I can keep a 100% caseload or a 50% caseload. I’m not sure exactly what I’m going to do, but I’ll probably start taking a somewhat reduced caseload. So my plan is to keep working. But there are other things in the world to do, too. I don’t think I’d want to go back to practicing law. But I know, for example, when Judge Barkett left the bench, she went to an international court at the Hague. I’d think about something like that. Jacki is now doing arbitrations and mediations and doing very well with that, but I wouldn’t want to do that. If I’m going to spend time doing legal work, I’d rather it be here, trying cases in federal court.
Q. Let’s say you do reduce your caseload to 50 or 60%. What’s going to fill up the rest of your time?
A. I want to travel. Now, I get very nervous when I’m away and I usually only take a one-week vacation because I don’t like the idea of things building up while I’m gone. But I want to go to Australia and New Zealand in 2024. My wife and I have gone to the US Open at Wimbledon, and now we want to see the French Open and the Australian Open. She has a bucket list item to visit all fifty states, and we still have five states left to go: Oklahoma, Mississippi, Indiana, Minnesota, and Ohio. So there will be a few trips. And we still have to go to the Galapagos Islands, Machu Picchu, and Iceland. As for our children, my older son and his wife live in New York, and my younger son and his girlfriend just started their medical residencies in Miami. We have some grand puppies and grand cats, and I don’t want to put pressure on my children, but it would be nice one day to have some grandchildren and have the time to spend with them.