The following week, the lawyers for the women suing Francis requested penalties be imposed against him. In direct violation of the mediation policy set forth by the court-appointed mediator and the mediation order issued by Judge Richard Smoak, the lawyers representing the women disclosed confidential information about the mediation session in open court, to the press, and to Judge Richard Smoak. This disclosure of what happened in the confidential mediation session was clearly improper, because it alleged no immediate threat of violence, and was only meant to prejudice the judge, the press and any potential jury in the pending criminal case against Francis.
It just so happens that Judge Richard Smoak is the ex-law partner of Ross McCloy, one of the lawyers seeking millions of dollars from Francis for the women in the case. They were both partners in a law firm called Harrison, Sale, Smoak and McCloy. Ross McCloy and Judge Richard Smoak remain close friends. In fact, Ross McCloy gave the keynote speech at Judge Richard Smoak’s confirmation. When lawsuits are filed in the state of Florida, they are randomly assigned to judges. It is improper to file, dismiss and re-file cases in an effort to find a more “favorable” judge. This activity is called “forum shopping.” Ross McCloy filed and dismissed the Francis case several times before it was finally assigned to his former law partner Judge Richard Smoak. Aforementioned in this article, Francis filed a First Amendment lawsuit against Panama City (Bay County, Florida) and its officials. The lawyers that represented the city, as well as its officials individually, were also Judge Richard Smoak’s former law partners. Interestingly, Judge Richard Smoak’s other law partner was Franklin Harrison, who was the attorney that represented the Bay County Sheriff’s department when Francis successfully sued the sheriff’s department and won his jet back. Ross McCloy & Franklin Harrison are still law partners. Since Franklin Harrison was representing the government and Ross McCloy was representing the women suing Francis for money, it was alleged Ross McCloy was able to improperly use confidential government information and resources to pursue the financial lawsuit against Francis (Tom Julin Motion).
Based upon this conflict and others, Francis’ lawyer had asked Judge Richard Smoak to remove himself earlier in the case, but the judge refused. Despite the violation of the mediator’s orders by the women’s lawyers, Judge Richard Smoak chastised Francis, not the women’s lawyers, saying Francis should be sent to “etiquette or charm school” and that if the colorful language used by Francis was true, then he should “bring his bag, because the sanction may well involve that he will go to jail.” There is no law or rule that prevents a party from swearing or using colorful language in a confidential mediation session. The judge set a hearing for Friday, March 30 (eight days after the initial mediation session), to consider the punishment for the allegations made by the women’s lawyers. (Court Transcript)
At the hearing on March 30, Judge Richard Smoak ordered the mediator to report about Francis’ good-faith efforts to reach a settlement, violating the very definition of mediation as set for in the Federal District Court’s own rules. (ADR article)
At that same hearing, Judge Richard Smoak chastised Francis, at one point asking him if he would have used that language if his mother had been at the table. Francis replied that he absolutely would have used that language if his mother were suing him for millions of dollars. After this exchange, Judge Richard Smoak found Francis in “civil” contempt of court because he purportedly failed to mediate in good faith. Rather than imposing a fine, or scheduling another mediation session, the judge ordered Francis jailed immediately, instructing him in open court that his choices were to “settle or jail.” That quote became the next day’s front page headline in the local newspaper. (News Herald “settle or jail” front page picture) It is unconscionable to compel a party in a civil lawsuit to settle that lawsuit or go to jail for not doing so. It is customary for parties who cannot reach a settlement to go to trial, not to jail. Judge Richard Smoak cited no legal basis for jailing Francis. Since Judge Richard Smoak ordered Joe Francis jailed immediately the U.S. Marshals came up behind Francis to handcuff and take him into custody. At that time, Francis’ attorney stood up and pleaded with the Judge for more time. The Judge told Francis’ attorney that if Mr. Francis had not reached a settlement by 4:30 that afternoon (in 2 hours) he must report to the U.S. Marshall’s office to be incarcerated.
At 4:30 that same day, Judge Richard Smoak “suspended” the civil contempt order because it was reported to the judge that progress had been made toward reaching a settlement. The Judge ordered the mediation to continue until 5 p.m., the next day, to see if the parties could reach an agreement to settle. (AP “GGW Founder Faces Jail Deadline” article by Melissa Nelson)
Interestingly enough, three articles about this incident appeared in Panama City (Bay County, Florida)’s only local newspaper, the News Herald. These articles were favorable to Joe Francis, because all three dealt with the judge’s “settle or jail” ultimatum given to Francis. Mysteriously, out of 342 stories on Joe Francis and Girls Gone Wild on the News Herald website, two of these are stories are missing from the paper’s online archives. Imagine that! These missing articles have been recovered and you can read them here. (Missing News Herald “Settle or Jail” articles from March 30, 2007 & March 31, 2007)
The next day, on Saturday, March 31, with a 5 p.m. jail deadline hanging over his head if he did not settle the lawsuit, Francis and the women’s attorneys negotiated for another six hours. It was virtually impossible to negotiate a civil settlement fairly when all of the parties involved understood that Francis would be facing jail time if he did not settle. At the end of the day, the women’s attorneys agreed to present to their clients an agreement in principal; none of the parties had accepted any offer, nor had the terms of the settlement been discussed. Early the next week, the parties tentatively agreed to a settlement figure, but could not agree on numerous other terms, including the period of time over which the amount would be paid, so no final settlement was reached by the deadline. Typically, if no settlement is reached, the parties report that fact to the judge, and the civil lawsuit proceeds to trial.
Four days later on Wednesday, April 4, Judge Richard Smoak found Francis’ failure to settle and pay millions of dollars to the women (and in turn, the judge’s former law partner) demonstrated Francis did not negotiate in good faith and was therefore in violation of his “civil” contempt order. He lifted the suspension and ordered Francis to surrender to the U.S. Marshall no later than 12:00 p.m. on Thursday, April 5. He said the situation could be resolved if Francis was to “meaningfully mediate” . . . apparently for yet a fifth day! It was becoming clear that the only way for Francis to “meaningfully mediate” was to settle and pay millions of dollars to Judge Richard Smoak’s former law partners.
The mediator’s bill for the six days of mediation was over $25,000 – for a mediation which the court claimed had not occurred “meaningfully” nor in “good faith.” As a result of the judge’s decision, Francis would be forced to mediate from jail. Judge Richard Smoak said that Francis would remain in jail for “whatever time it takes to get that set up with all deliberate effort.” He further stated that Francis could complete his trial preparation “in custody, if that’s what it takes to get him to properly comply.” It was obvious Francis was not just to negotiate in good faith; he was to settle. (Smoak court transcripts)
Francis’ lawyers immediately asked the Federal Court of Appeals in Atlanta, Ga. to stay his civil contempt order while it was appealed. During this time, Francis gave a print interview to the Associated Press and two television interviews via phone. In the print interview, Francis’ spokesman Ronn Torrosian referred to Judge Richard Smoak as a “Judge Gone Wild.” In one of the television interviews on the Greta Van Susteren Show, Francis expressed his utter dismay with the concept of being ordered to jail for not settling a civil lawsuit with the judge’s ex-law partner. Dozens of legal scholars, commentators and journalists including TMZ’s Harvey Levin backed Francis. (MSNBC interview with Harvey Levin). (Melissa Nelson AP article “Judge Gone Wild”; Business Week Torrosian Article; Video 2007 Greta Van Susteren Show “Settle or Jail”)