11th Circuit gets creative in an effort to move cases
Facing a backlog of cases since jury trials were suspended in March — and an avalanche of new ones when they resume — the 11th Judicial Circuit is exploring creative alternatives.
On September 8, Civil Administrative Judge Jennifer Bailey issued an order creating the “Judicial Panel Case Resolution Conferences Pilot Program.”
“This is another arrow in our quiver,” Judge Bailey said. “We recognize that with the pandemic, and the loss of the threat of a jury trial date, that lawyers and judges have to be creative to find tools to move cases.”
The pilot program gives willing parties the ability to present their cases to a panel of three judges from the circuit’s appellate division. The day-long case resolution conferences would resemble a mini trial, complete with evidence and witness testimony.
The pilot grew out of a local ABOTA chapter proposal for a variation of non-binding arbitration, Judge Bailey said.
“We looked at the proposal of non-binding arbitration and sort of concluded that judicial settlement conferences were more clearly authorized under the existing rules, so we decided to proceed in that way,” Judge Bailey said. “We really tried to capture the best of both worlds…providing a kind of ADR [alternative dispute resolution] system, under Rule of Civil Procedure 1.200.”
She stressed that the program is voluntary.
Circuit Judge Lisa Walsh, who helped design the program, sees many advantages.
“This seemed like a real opportunity to use these three very wise and competent judges to assist in giving parties a clear-eyed evaluation and assessment of the worth of their case,” she said. “There is integrity in the process because we are seasoned fact finders and neutral and not beholden to any party, nor do we have any financial incentive on our own part.”
Philadelphia recently implemented a similar, but mandatory program, Judge Walsh said.
She predicts that the pilot program will be most attractive to less complex disputes.
“I think garden variety, smaller cases, either first-party, or tort cases, or even small business cases would be very appropriate for this, so long as they could keep their costs low,” she said.
If lawyers are tempted by falling COVID-19 infection rates to wait for the resumption of jury trials, they should think again, Judge Bailey said.
Even when jury trials resume, CDC guidelines and social distancing will allow existing facilities to accommodate only a fraction of the 40 to 50 jury trials per month that judges in circuit civil were scheduling before the pandemic, Judge Bailey said.
At the same time, courts expect to see as much as a 67% increase in caseloads associated with the “consequences of the economic damage of COVID-19,” Judge Bailey said.
“We’re looking at a huge potential expansion of the caseload that some estimate as high as 67%, which could rival the great recession,” she said. “This is the moment in time in which your cases have the opportunity to secure unique attention and you should take advantage of it.”