May 27, 2020 Member Spotlight

Member Spotlight: Anthony Musto

By Anthony C. (Tony) Musto

Tell us a little bit about your career.

I am presently a sole practitioner who focuses almost exclusively on appellate matters. I also teach as an Adjunct Professor of Law at St. Thomas University School of Law. 

In a career of over four decades, split pretty much evenly between private practice and public service, handling appeals has been the one relatively constant aspect of my lawyering (not always full-time but usually at least part of what I was doing). I took to appellate work, and stuck with it, because of its intellectual challenges and because of the flexibility it provides, both in terms of time and location. It seldom ties you to the schedules of other people—judges, lawyers, clients, support staff—like so many other things do.  Office hours don’t mean much. You can write briefs in the wee hours (as I have done so often, especially when I was younger and thought nothing of working until 4:00 or 5:00 in the morning), at the crack of dawn, or whenever you choose during the day. I have been able to work from home since long before doing so became fashionable (or, in light of current events, necessary). And it now allows me to maintain my practice while spending time at both a primary residence in Hallandale Beach, FL, and a second home in Asheville, NC.

Do you remember the fickle finger of fate from Rowan and Martin’s Laugh-In? (It is nice to have an audience that gets such references. When I teach, my students often have blank stares when I mention something that happened more than a decade ago.) Well, that finger has played a big role in my career, bringing about many wonderful surprises—and some disappointments—that I never expected. The first time it did, it led to my discovering my love of appellate work. After law school, I was looking for a job as an attorney while making ends meet by working behind the counter at Budget Rent-a-Car, where they offered me a chance to enter management, something I seriously thought about during some of the discouraging moments of my job search. Appeals were not even on my radar. I knew nothing about them. I had neither taken a course in appellate practice nor done moot court in law school. I was focused on becoming a trial lawyer.

Then, one day, out of the blue, I received a call from the head of the Florida Attorney General’s West Palm Beach branch office, asking if I would be interested in interviewing for a position. Turns out a college professor of mine, a lawyer who had gone on to become the head of the AG’s Miami branch, heard about the opening in West Palm Beach, called his counterpart, and suggested I be considered. Within a week or so, I was representing the state in criminal appellate proceedings. Four years later, I became the chief counsel of the AG’s Miami office. After I left that position, I spent seven years as prosecutor, had my first stint in private practice, and then became the Chief Appellate Counsel for the Broward County Attorney’s Office in Fort Lauderdale. I have now handled well over 1,000 appellate proceedings and I have been board certified by The Florida Bar in appellate practice since 1995.

Although appellate work was the alpha and likely will be the omega of my career, I also have extensive experience with trials and administrative proceedings. As is true with most of us who have been around long enough to become members of the Senior Lawyers Division, my path to where I am today has included many twists and turns, some strolls off the beaten path, and a few roadblocks. On my journey, I have had the good fortune of being exposed to many different areas of the law in many different settings. I am grateful for each of those areas and each of those settings because they all made me a better lawyer, not only as regards whatever I was doing, but also as regards the other areas of practice. Handling appeals made me a better trial lawyer, and vice-versa. Being a practitioner of criminal law made me a better civil lawyer, and vice-versa. All of these experiences helped me in administrative matters, and the cases I handled in that arena made me better in the courts. My time as a traffic magistrate and a code enforcement hearing officer gave me a taste of the judicial perspective that impacted every area in which I practiced.

As the millennium neared, I left the County Attorney’s Office and settled back into private practice. On the morning of September 11, 2001, I first heard the reports of the events of that memorable day on the radio as I was driving to the clerk’s office to file my paperwork to run for the Hallandale Beach City Commission. I was elected and thus began my political years (a period I entered thinking I was cynical about politics and one which ended with my realizing that before my election, I had been Pollyanna.). I served one term as a commissioner, during which I became very politically active in numerous respects, and I chose not to run for reelection or for another office. There were many reasons for that decision, among them the fact that the time and energy needed to properly serve as an elected official was overwhelming and took a tremendous toll on my practice.    

Soon thereafter, fate again intervened. It brought me into academia, and it forged my path after I got there. A new dean took over at St. Thomas and decided to replace most of the professors teaching legal writing with part-time adjuncts. The school ran an ad and I applied. Now, as you probably know, many, many lawyers want to teach, either full or part-time, so the school received a blizzard of applications. One of the professors doing the hiring took the stack home, where her attorney husband browsed through them. He knew me from cases we had handled against each other, including one in the Florida Supreme Court, and he spoke highly of me to his wife. His comments carried great weight and I got the job. 

A new dean took over a few years later and I became full-time when he undid the switch to adjuncts. Shortly thereafter, a tragic death opened a position and I became the school’s Director of Community Outreach and Pro Bono Services. At about the same time, a professor had to take some time off to deal with a family illness, so the teaching I was doing along with my administrative duties was switched to substantive courses. Yet another dean took over and he determined that community outreach and pro bono services should be handled by staff, not a professor (a bad decision in my opinion without regard to its impact on me), so I began teaching substantive courses full-time. I became something of a utility infielder (for those of you who don’t get sports references, think “jack of all trades”), bouncing among subjects like Criminal Law, Criminal Procedure I and II, Evidence, Appellate Practice and Juvenile Law, as well as advanced courses in some of those areas. 

After 11 years, I stepped down from full-time status and again became an adjunct, teaching Evidence and Criminal Procedure when my schedule allows. Because I was never a tenure-track professor, I did not have the obligation to publish (although I did so now and then), so I was able to maintain my practice the entire time. 

The latter stages of my career would have been very different (Better?  Worse?  Who knows?  But, for sure, different.) had the changes in deans not occurred, had other deans been chosen, had the chosen deans made different decisions, had a professor not decided to review resumes at home, had her husband not known me or not leafed through the resumes, had a tragic death been averted, had a relative of a professor not become sick. All things I had no control over, no knowledge of. The finger of fate is fickle, indeed.

Is it what you had planned when you started law school?

When I started law school, I was still confident that I would cure cancer, bring a lasting peace to the Middle East, play centerfield for the Yankees, and become the Emperor of the universe. (I have now reluctantly accepted that I probably will not achieve more than two of those goals.) My plans regarding the law were very unfocused. In fact, one of the reasons I went to law school was that it would buy me three more years before having to decide what I wanted to do when I grew up and I thought that a legal education would serve me well in many different possible career paths. As it turned out, my career took many paths (see the answer to the preceding question), so I guess in one sense it could be said that it turned out as planned. Or, looked at another way, I never did decide what I wanted to do when I grew up.

What has been the highlight of your career?

It’s a tie. No, not the snazzy blue one that I really like. A tie in the sense of two things being equal.

I authored, submitted, obtained evidence to justify, coordinated support of, and successfully argued in the Florida Supreme Court for a rule that requires the use of recycled paper for all court filings in Florida, a rule that resulted in an estimated savings of 850,000 trees annually over the 20 years or so between its adoption and the advent of electronic filing.

                When I was at the Broward County Attorney’s Office in the 1990’s, I was responsible for that office’s groundbreaking and innovative pro bono program. While such programs are not unusual today, at that time pro bono work by government lawyers was almost unheard of. The program overcame the many obstacles and objections to the provision of pro bono services by lawyers in public service (concerns such as conflicts of interest and appearances of conflicts, the use of government facilities and resources, and the need for malpractice insurance, letterhead stationery and trust accounts) to such an extent that it became a model for other offices throughout the country. It was cited by Chief Justice Rosemary Barkett in the specially concurring opinion she wrote when the Florida Supreme Court adopted aspirational goals for pro bono service by Florida lawyers. The trailblazing nature of this program is also reflected by the office becoming the first governmental agency ever to receive the ABA Pro Bono Publico Award and the first ever to receive the Florida Supreme Court Chief Justice’s Law Firm Commendation.  

If you could go back to the beginning of your legal career, would you have done anything differently?

I wonder less about the roads not taken than I do about the roads not discovered. In retrospect, I should have made myself more aware of opportunities that might have existed for me. I enjoyed everything I did. That probably made me too comfortable and I therefore kept doing the things I was doing without paying attention to options that may have led to other or additional things. When circumstances in my life have forced me to look at my options, I have always found a good one. The fact that I did makes me think that there were probably a lot of things I could have achieved had I been looking for them when there was no need to do so.

What advice would you give to someone considering law school today?

I would ask such an individual if he or she wants to go to law school primarily to make a difference or to make money. Both are legitimate reasons for entering our profession (indeed, we almost all want each in varying degrees), but I would hope that the answer would be to make a difference. If it is, I would tell the person that law is a tremendous vehicle for doing so.  

I would say that a legal career gives you a chance to do great things. You can right wrongs. You can speak for those with no voice. You can achieve justice. If those things motivate you, become a lawyer and pursue them. You won’t be able to change the world through your practice, but you will be able to change the worlds of many people. I would talk of some of the times when I have done so, such as in a case in which I was able to reverse a denial of medical benefits for an uninsured indigent veteran who got cancer decades after being one of the first soldiers to enter Hiroshima and Nagasaki following the dropping of the atomic bombs. I would tell the person not to expect that you can have this sort of impact in every case you handle, but that the opportunities will be there for you. Seize them when they arise. If you do, you will have an incredibly satisfying and productive career, one that you will look back on with pride, contentment, and a feeling of accomplishment when you become a senior lawyer.

I would also say that being an attorney can open doors for you in other realms. It can be a gateway to effective involvement in things like politics, public service, civic endeavors, and charitable efforts. I have a framed copy of a classic Peanuts comic strip in my office. Snoopy, looking very much the attorney while carrying a briefcase and wearing a bowler hat and a bow tie, walks by Linus, who says, “The lawyer is evermore the leader in society.” Snoopy continues walking, stating in the second panel, “I like that,” and adding in the third, “I don’t understand it, but I like it.” Snoopy’s befuddlement aside, Linus’ point is well-taken. People look to us for leadership and it is often through leadership by ones with vision, with a desire to make a difference, that great things can be accomplished and that maybe, just maybe, the world can be changed at least a little bit.

For the prospective law student motivated primarily by economics, I would touch on the above considerations in the hope of kindling a small flame that might later grow. But my focus would be on telling him or her that while the law is a profession that can provide you with a good living, the job market today, and for the foreseeable future, is not strong for law school graduates. Students who are not sure what they want, those for whom law school is one of multiple options, should seriously assess the long-term financial implications of becoming a lawyer versus those of the other options. Many of today’s newly minted lawyers do not find a job in the legal field, so they take ones that do not require a legal education. Thus, they have incurred three years of expenses (and likely have student loans to pay off) without any significant income. Had they entered another field, they would have accumulated three years of income, not incurred school expenses or debts over that time period, and advanced in their career paths to a point at which they would be making more money than law school graduates who then enter that field (and more than even many of the law graduates who do find jobs as attorneys). These facts do not mean that law school is not a good option, but they are the realities of the world and should be considered in making decisions as to what road to follow after college. 

The other thing I would say—regardless of the person’s primary motivation—is the answer I give frequently to young people or their parents when they ask (something that occurs not infrequently) what college courses best prepare people for law school. None of them really do. While classes in logic and writing can be helpful, the fact is that the legal educational process is very different from the processes employed at the college level. I nonetheless do offer a recommendation as to an important matter to consider in deciding what to study as an undergraduate. The approach taken by law schools teaches students to think like lawyers, not to be lawyers (a concept I, like most practitioners, ridiculed before I began teaching, but one which I learned is critically important), so it does not prepare students at all for the economic realities of our profession. I often tell my students that when they enter private practice (as opposed to public service, which, while generally less lucrative, allows them to handle their cases blissfully unconcerned with the economic aspects of practice), they become businesspersons. They are selling their time and expertise just like the owner of a deli is selling pastrami. Yet we in law schools teach them virtually nothing about how to run, or further the economic interests of, a business. (That’s not a criticism of law schools. There is not room in the curriculum, nor, for the most part, sufficient faculty expertise, to provide such instruction. Moreover, in my opinion, the need to make other systemic changes, such as integrating practical considerations into substantive courses, is of a higher priority.) Thus, I suggest that students take courses, and perhaps even major or minor, in business. It won’t prepare them for law school, but it will prepare them for their careers afterward.  

What were the biggest changes you saw in the legal profession over the course of your career?

The most important and best change is greater diversity, in terms of race, gender, ethnicity, and otherwise. The change that has probably had the greatest impact on day-to-day practice has been the staggering increase in the use of technology, something I have found to be a mixed blessing. Also having both good and bad aspects is our profession becoming so specialized, as well as the advent and proliferation of advertising. The shift of focus from law as a profession to law as business, while making many of us wealthier, has come at a significant cost in so many ways. It has certainly been a factor in the decline in civility and professionalism, which, contrary to what might be suggested by the term, is a much bigger problem in “civil” cases than in criminal ones. Also contributing to that decline has been hourly billing becoming the norm. These factors and others—not all our fault—have led to the deterioration of the image of attorneys in the eyes of the public. Political considerations have become almost the only thing, rather than just one of the things, taken into account in the selection of judges—true no matter which party is in charge. Cameras have entered, and remained in, our courtrooms, their presence giving the public greater information about judicial proceedings, but sometimes information that can be misleading when it is defined by catchy quotes or sound bites—and, I must admit, there were times when I worked on the “catchiness” of what I was going to say in order to have some influence on what the media would report. The impact of scientific advancements such as DNA testing has led to justice in many cases but has also created unrealistic expectations in the minds of some jurors. We morphed from legal size paper to letter size, thereby making our files thicker. Maybe not one of the “biggest” changes, but a pet peeve—there’s a reason they call it “legal” size, you know. And, finally, we somehow went from most lawyers being older than me to most lawyers being younger Not sure how that happened.

When did you first become a member of the ABA and why did you decide to join?

For me, this is a more complex question than it might appear because I actually became a member of the ABA twice before I ever “decide[d]” to be one.

The first time was over 25 years ago when I joined the County Attorney’s Office. It had a group membership in place, so there was no decision involved. I became active in the Government and Public Sector Lawyers Division, chairing one of their committees and coordinating events—such as the first ever national program on professionalism for lawyers in public service—with them during my term as Chair of The Florida Bar Government Lawyer Section. After I went back to private practice, my involvement in bar activities waned due to the demands of my political endeavors and my practice. Those demands, coupled with the fact that my ABA activities, although greatly enjoyable, were focused on my prior service as a government lawyer, led to my dropping my membership. 

Not for long, however. A few years later, when I became a law professor, I learned that the law school also had a group membership. I thus again found myself within the folds of the ABA without having made a decision to join. This time, my involvement was more extensive (law schools have more money for such activities than do public offices). I served on the Standing Committee on Professionalism, the Commission on Youth at Risk, and the Criminal Justice Section (CJS) Council, co-chaired the CJS Juvenile Justice Committee and became the Co-Executive Director of the CJS Specialized Practice Division. 

When I stepped down from my full-time position at the law school and assumed adjunct status, I was no longer part of the group membership. By this time, however, I was enjoying the things I was doing within the ABA so much that I was hooked, so (and now we finally get to a decision) I did not have to even think twice before deciding to continue my membership on my own dime.

What has been the highlight of your work with the ABA?

Given the entity that is asking these questions and will be distributing these answers, I believe I am contractually obligated to say that it is being nominated for a position on the Senior Lawyers Division Council. If this question had been asked a few months ago, I would likely have said authoring a chapter in a book, Essential Qualities of the Professional Lawyer, published by the Center for Professional Responsibility and the Standing Committee on Professionalism. The committee and section service noted in my answer to the preceding question, as well as speaking at CLE programs, rate highly as well.     

If you had not become a lawyer, what do you think you would have done?

When I graduated from college, the debate in my mind was between law school and journalism. I wrote for and served as the sports editor of my undergraduate school’s newspaper. In retrospect, given the way newspapers have become a shell of themselves, cut staffs to the bone, and waned in influence and impact, I think law was the better of the two choices. Had I gone into journalism, I probably would have been laid off at the peak of my career in a cost-cutting measure and ended up as a greeter at Wal-Mart (and then laid off from that position when they eliminated greeters). 

Not only was law the better choice given the way the two professions developed, but it was the better choice for me as an individual, and not just because of the satisfying career I have enjoyed as an attorney. I have also been fortunate enough to have had a side gig over the years covering college and professional sports events as a stringer for the Associated Press. I have thus gotten to do the fun part of being a reporter (covering the games from a great seat, while being fed and getting paid), without the drudgery of writing about practices, injuries, contract negotiations, etc. Think of it as being able to just do closing arguments with someone else doing the discovery, witness prep, legal research, etc. And not only have I regularly covered games played by all of the south Florida teams, but I’ve also covered major events like the Super Bowl, the World Series, the NBA finals, the Stanley Cup finals, NCAA championship football games, NCAA basketball and baseball tournament  games, championship boxing matches, and major horse races, including, on one memorable occasion, my favorite sports event, the Kentucky Derby.

Author

Anthony C. (Tony) Musto is from Hallandale Beach, FL, where his practice focuses primarily on appeals. He has handled well over 1,000 appellate proceedings, including more than 75—civil, criminal, and juvenile cases, rules proceedings, and extraordinary writs—on the merits in the Florida Supreme Court. Mr. Musto spent 11 years as a full-time member of the faculty at St. Thomas University School of Law, where he is currently as an Adjunct Professor of Law. Among the subjects he teaches are Evidence, Criminal Law, Criminal Procedure, Juvenile Law, and Appellate Practice. During his career, he has served as a City Commissioner for the City of Hallandale Beach, FL, the Chief Counsel of the Florida Attorney General’s Miami Office, the Chief Appellate Counsel of the Broward County Attorney’s Office, an Assistant State Attorney, an Assistant Public Defender, a special master for code enforcement matters, an arbitrator for Lemon Law disputes, and a hearing officer for both traffic infraction and school expulsion proceedings. In his spare time, Mr. Musto covers collegiate and professional sporting events for the Associated Press, relaxes at his second home in Asheville, NC, collects old postcards, reads, and explores the back roads and national parks of America.