Art of procedural rulemaking draws in Bar members
Mechanics gotta tinker, trying to get the perfectly purring motor.
Bar procedural rules committee members gotta torque down that adjective, cinch up the dependent clause, and trim an excessive word. It’s all in the cause of getting a smoothly running procedural engine to transport parties and lawyers with as few bumps as possible through their interactions with the legal system.
What makes a few hundred Bar members volunteer uncountable hours to serve on the 11 procedural rule committees in what can be a fiddly, fussy process of reviewing rules, conforming them to the latest statutory enactments, caselaw, technology, and methods of practice?
With a chuckle, Sandy Solomon, new chair of the Rules of General Practice and Judicial Administration Committee and who has served on rules committees since 1986, called it a prurient interest.
“The exchange is intellectually rewarding. The people you meet and work with on the committees really care what’s going on and they’re all really smart. They are dedicated to making the system better,” Solomon said. “It’s all about what makes the system better and what the rules ought to be. As a result of the dedication of those who have served on the committees, the Florida rules are light years ahead of other states both in terms of the way the system works, the way they’re accessible, and the way people can rely on the consistency of the rules.”
Cory Brandfon, immediate past chair of the Family Law Rules Committee, and beginning his fifth year on the panel, sees a variety of factors that draw members.
“You need to have an understanding of the rulemaking process and recognize the role of the standing rule committees in that process and the great responsibility they have to review and advance proposed revisions. That’s number one,” he said.
“Two, you probably have to have had an experience or two with frustration with the rules. Number three, you have to care enough to be willing to put in the time to make them better for everybody.”
“It’s really a good opportunity to see from the group how these rules are drafted and edited to deal with any issues practitioners have,” said Cady Huss, new chair of the Florida Probate Rules Committee. “You kind of get an idea of where things are coming from and what issues people have had with the rules that had led to changes. It’s a very interesting process and a great learning process for young folks.
“You get involved with some interesting issues that practitioners have in using the rule that you might be unaware of. You need to have an open mind, you need to have the ability to see how a rule might be utilized a different way in a different circuit.”
“People do it to give back to the legal community and to share their expertise to improve the procedural rules for all the lawyers in the state,” said Second Circuit Judge Angela Dempsey, immediate past chair of the Criminal Procedure Rules Committee. “It definitely takes a collegial and open-minded outlook. Our committee is supposed to be balanced with around a third each of judges, criminal defense lawyers, and prosecutors. The goal is to keep it balanced for a reason, so we’ll have a balanced outlook and input.”
“Rules committees are popular because you can effectuate real change. You can change a rule, but we can’t change substantive law,” said Broward County Judge Olga Maria Gonzalez-Levine, immediate past chair of the Small Claims Rules Committee and a former member of the Criminal Procedure Rules Committee. “You have people who are generally more involved and would like to be more active in the law and in the legal profession in moving it forward.”
The committee chairs said members have to be receptive to a wide range of requests, which can come from inmates, lay people, and other lawyers. New legislative enactments annually affect rules, and most committees have regular reviews to conform to new laws. And of course court rulings affect procedure rules. And frequently two or more rules committees work together on common issues that span different practice areas.
“You need a willingness to work together with fellow committee members and different rules committee members,” Huss said. “Teamwork certainly helps on these committees.”
“The camaraderie and learning to deal with lawyers and judges from around the state is the reason I keep coming back,” Solomon said. “You’re hearing in a non-adversarial context people talk about and debate the good and the bad of the practice and rule drafting…. When judges get on these committees and express their views, it becomes an appealing process of hearing what they have to say. It makes me a better advocate and a more effective lawyer.”
And for those who think the rules process is dry, dusty, and lengthy debates over the placement of commas and semicolons, the committee leaders easily point to issues that affect a broad swath of legal practice.
Solomon said the RGPJAC committee, working with several other procedural rules committees, is about to finish a revision to Rule 2.530, which governs remote evidentiary and non-evidentiary hearings. A process that began before the COVID-19 pandemic, it’s gained considerable interest as courts resorted to remote proceedings during the pandemic and expect to continue using them to help address case backlogs.
The committee also is continuing to work on Rule 2.240, which addresses protecting confidential information in court filings. The Supreme Court recently amended the rule to end automatic clerk redaction reviews for small claims and most civil filings, placing a greater burden on lawyers to ensure they have identified protected information in their filings.
He said the committee is also about to look at a glitch in state law governing clerks administering oaths and at limited appearances by lawyers.
Huss said the Florida Probate Rules Committee is working with RGPJAC on the rule amendments on electronic signatures on court documents, which were sent back by the Supreme Court to the latter committee for more work.
The probate panel also has written rules to implement the electronic will and small estate administration processes recently approved by the Legislature, Huss said. At the Supreme Court’s request, the committee edited guardianship forms.
“There are always things coming up that we have to work on,” she said.
Judge Dempsey said the Criminal Procedure Rules Committee recently finished a review, at the Supreme Court’s request, of the speedy trial rule, which is pending before the court. Among current projects, the committee has been working with the RGPJAC on the remote proceedings rules.
“They’re trying to do it in a rule that’s applicable to everyone, but it’s hard because there are obviously constitutional concerns in criminal that are different than those that come up in civil,” Dempsey said.
Judge Gonzalez-Levine said the Small Claims Court Rules Committee has been updating rules to comply with recent legislative amendments on service. And a subcommittee is considering a controversial amendment that would allow proposals for settlements in small claims cases, with strong views on both sides.
“It’s in the civil rules but it’s not expressly referred to in the small claims rules,” she said. “That could be a large difference going forward.”
Brandfon said the Family Law Rules Committee is looking at how the Supreme Court’s recent change of the summary judgment standard affects family law cases. The committee is also working with RGPJAC on the remote proceedings rule and has finished reviewing family law rules and forms to make them gender neutral.
A major issue coming up for the committee will be updating the financial affidavit required in a wide variety of family law proceedings, including dissolution and child support, Brandfon said.
Interested members can apply to join rules committees as at the end of the year when applications are accepted for these and all other Bar committees. Notices will be in the Bar News and on the Bar’s website.
And, as Judge Gonzalez-Levine noted, lawyers can join the tinkering process without being a member.
“Anybody can make a referral [for a rule amendment]. I don’t think enough people know that,” she said. “You don’t have to be part of the committee to recommend a change.”