Editor’s note: Florida Bulldog erroneously suggested that William Scherer won a court battle over punitive damages. This story has been corrected to reflect Judge Marnie Bryson’s victory.
By Noreen Marcus, FloridaBulldog.org
A settlement has ended South Florida telenovela-worthy litigation involving explicit photos of a female Palm Beach County judge, a well-known pair of male trial lawyers and a spiteful post-divorce row.
Thus concludes five-and-a-half years of court drama heightened by claims of extortion, harassment and intentional infliction of emotional distress.
Palm Beach County Court Judge Marni Bryson alleged that William Scherer, the Fort Lauderdale lawyer for a potential witness in her child-custody dispute with her ex-husband, sent Jack Scarola, a lawyer from outside the case, to pressure Bryson into giving a pass to the potential witness — the ex’s girlfriend, Stephanie Toothaker, another high-powered Fort Lauderdale lawyer and lobbyist.
According to the lawsuit Bryson eventually filed, Scarola threatened to release nude photos that Bryson had taken to record her pregnancy. She would later admit to posting the photos on social media and sending them to her then-husband, political consultant James Blake MacDiarmid, years before the conversation with Scarola.
Bryson said Scarola’s bullying worked in 2015 – Toothaker never testified and the custody case was settled – but Bryson suffered and, four years later, rejected victimhood in favor of contesting Scherer in court. She alleged intentional infliction of emotional distress against Scherer; she couldn’t sue Scarola because he played no role in her custody case.
Scherer argued that he and his friend Scarola, a Palm Beach County litigator known for his ferocity, were trying to help Bryson avoid embarrassment.
CONFIDENTIAL SETTLEMENT
If his client Toothaker had been subpoenaed to testify, Scherer said, she would have been obliged to reveal that Bryson harassed and threatened her. Scherer and Toothaker are both influential in Broward real estate and government circles
On April 8, 2019, three days before Bryson filed her lawsuit in Palm Beach Circuit Court, she demanded $10 million within 72 hours from Scherer and his law firm Conrad & Scherer. Bryson called it a legitimate attempt to bypass litigation; Scherer called it “extortion” in a lawsuit he filed and then dropped four months later.
Two years into their legal battle, the Florida Supreme Court, acting on a complaint from the Judicial Qualifications Commission, found that Bryson had failed to “devote full time to her judicial duties.” She had to pay a $37,500 fine and submit to a reprimand.
In 2022 Bryson was reelected without opposition to Palm Beach County Court, where she serves in the criminal division. She was first elected in 2010 and reelected in 2016.
Bryson dropped her lawsuit against Scherer on Sept. 7, shortly before a scheduled Sept. 23 trial. The settlement terms are confidential, and Scherer didn’t respond to an email from Florida Bulldog seeking comment.
“The case was amicably resolved” was all Bryson’s Fort Lauderdale counsel, Paul Turner would say.
WHO CAME OUT AHEAD?
It’s not hard to tell from the 463-item court docket which party had the upper hand in negotiating the settlement: Bryson.
Early on, Judge William Roby seemed sympathetic to Bryson. He’d been imported from St. Lucie County Circuit Court to handle Bryson’s home court lawsuit so her Palm Beach Circuit colleagues wouldn’t face a conflict.
In an important 2021 ruling, Roby decided that Bryson should be allowed to ask a jury to award hefty punitive damages against Scherer for allegedly scheming with Scarola to threaten her. Bryson makes “a very valid case” for a punitive damage claim “in this odd, yet intriguing case,” Roby wrote.
He penned a celebratory introduction to his ruling: “One of the nirvana moments of judging is when the right thing melds into the legal thing and all is right with the world, even if only for an instant.”
Scherer asked the Fourth District Court of Appeal to reverse Roby’s decision. His lawyers argued there wasn’t enough evidence he’d acted outrageously to justify letting a jury consider punishing him with a huge punitive damage award.
The 4th DCA agreed. Roby “departed from the essential requirements of law,” a panel wrote. Nevertheless, on Dec. 9, 2021 Roby issued a second, much more detailed opinion favoring punitive damages.
“Punitive damages are appropriate when a defendant engages in this type of conduct, which is malicious, extortionate in nature, and exhibits a wanton disregard for the rights and safety of others,” he wrote.
This time, Scherer couldn’t convince an appellate court to overrule Roby.
A QUESTION OF ETHICS
After the issue of punitive damages was resolved in Bryson’s favor, the parties battled on for almost three years.
Crucial to Bryson’s case was the fact that she had her own lawyer when Scarola popped into her courtroom on Nov. 16, 2015 to discuss her child- custody case. Normally when legal adversaries have lawyers, the lawyers talk to each other – not to each other’s clients.
The docket shows Bryson’s side was prepared to argue at trial that Scarola and Scherer plotted, in violation of ethics rules, to threaten the release of Bryson’s nude photos in order to protect Toothaker.
Bryson listed as a trial witness Marie Calla Quartell, a Palm Beach Gardens lawyer who’d represented her in the child-custody dispute.
Quartell intended to testify that Toothaker had the option of submitting a sworn affidavit instead of testifying in person, according to the witness list. So much for sparing Bryson from embarrassment.
Also on Bryson’s witness list: Anthony Alfieri, a law professor and director of the Center for Ethics and Public Service at the University of Miami School of Law. He was going to testify that Scherer’s conduct was, “at a minimum, in disregard of the Florida Rules of Professional Conduct.”
Last month Bryson asked Roby to exclude the nude photos from the trial because they would only distract the jury from serious issues. She wrote that one of the photos Scherer produced was “an image of a vagina that is not Judge Bryson’s (despite Defendants wrongly suggesting it is) and was not taken by Judge Bryson.”
With the settlement, Roby never got around to hearing Bryson’s motion.
Finally, Scherer’s lawyers put on a full court press to convince Roby to decide the case in his favor before assembling a jury. As the trial date loomed, they filed a lengthy motion for summary judgment that, if granted, would have shut down the proceedings without a trial.
On Sept. 5 Roby refused to hear the motion because it had been filed too late. The Sept. 23 trial was on. Two days later the parties announced they had settled.
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