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March 1, 2013
Amendments to the evidence code

The Florida Bar’s Code and Rules of Evidence Committee has submitted to the Florida Supreme Court its regular-cycle report concerning recent legislative changes to the Florida Evidence Code. The committee recommends that the court adopt, to the extent they are procedural, sections 90.5021 (Fiduciary lawyer-client privilege), and 90.804(2)(f) (Hearsay exceptions; Statement offered against a party that wrongfully caused the declarant’s unavailability) of the Florida Evidence Code (2012). The committee also recommends that the court adopt, to the extent it is procedural, section 766.102(12) (requiring medical malpractice expert witnesses who provide certain expert testimony to meet licensure or certification requirements), Florida Statutes (2012). The Board of Governors of The Florida Bar supports the committee’s recommendations concerning the amendments to the Evidence Code. However, the board opposes the adoption of section 766.102(12) as a rule of evidence because of concerns that (1) the statute infringes on the Supreme Court’s constitutional authority to adopt rules of practice and procedure, (2) will have a chilling effect on the ability to obtain expert witnesses that is prejudicial to the administration of justice, (3) and conflicts with existing procedure governing the admissibility of testimony in court proceedings. The court invites all interested persons to comment on the committee’s recommendations, which are summarized below and reproduced in full online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before April 1, with a certificate of service verifying that a copy has been served on Thomas D. Shults, Committee Chair, 240 S. Pineapple Avenue, 6th Floor, Sarasota 34236, tshults@kirkpinkerton.com, and on the Bar staff liaison to the committee, Ellen Sloyer, 651 E. Jefferson Street, Tallahassee 32399-2300, esloyer@flabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument scheduled in this case for June. The chair has until April 22 to file a response to any comments filed with the court. Electronic copies of all comments also must be filed in accordance with the court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA
IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE, CASE NO. SC13-98


STATUTE
EXPLANATION
F.S. 90.5021Chapter 2011-183, §1, Laws of Florida, created section 90.5021, Florida Statutes (Fiduciary lawyer-client privilege). The committee recommends that the Court adopt this amendment as a rule to the extent that it is procedural.
F.S. 90.804(2)(f)Chapter 2012-152, §1, Laws of Florida, created section 90.804(2)(f), Florida Statutes, regarding a statement offered against a party that wrongfully caused the declarant’s unavailability. The committee recommends that the Court adopt this amendment as a rule to the extent that it is procedural.
F.S. 766.102(12)Chapter 2011-233, § 10, Laws of Florida, added subsection (12), requiring medical malpractice expert witnesses who provides certain expert testimony to meet licensure or certification requirements, to section 766.102, Florida Statutes. The committee recommends that the Court adopt this amendment as a rule to the extent that it is procedural.

[Revised: 10-14-2014]