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Ask Judge Smith: Civil Trial Orders


Ask Judge SmithQ. Judge Smith, how do you decide when to schedule civil cases for jury trials? What do you include in your trial orders? — Cassandra

A. Many parties do a good job moving their cases along. Others don’t. I use my experience to jump-start languishing cases. If a case goes too long without progress, I schedule it for a hearing to encourage the parties to settle or try their lawsuit.

Some parties will not resolve their case until they are forced to by circumstance. The work and expense of trying the lawsuit and their fear of the unknown often generate a compromise.

A judge cannot schedule a lawsuit for trial until both sides have pled their claims and defenses. Afterward, I aim to work with the lawyers’ calendars and set jury trials eight to 12 months later. Taking this action puts the parties on notice of all essential deadlines. Thus, they have ample time to prepare. Now, let’s walk through my trial order.

The parties estimate how long it should take to try their case. We agree on a pretrial hearing, jury selection, and trial dates.

Most lawsuits have a predictable rhythm. My standard trial order imposes sequential deadlines to encourage the case’s speedy, efficient, and just resolution. First, the parties must disclose their witnesses and trial exhibits. Next, my order imposes a deadline for them to establish the evidence. Neither side can feign surprise or need further delay as long as they exercise diligence.

Some lawsuits end by motion and final judgment without a trial. My trial order imposes a deadline for hearing dispositive motions.

Finally, my order usually sets a deadline for the parties to mediate their case. They can mediate their dispute whenever they choose to, as long as they don’t bust the deadline.

As the case ages and approaches trial, each side must devote more time and money to wrap it up. The expenses and stomach-churning anxiety provide an incentive to settle.

My trial order requires the parties to meet and prepare a joint pretrial statement. They must explain their positions and suggest jury instructions.

The work I order them to do helps me prepare to try their case. Likewise, this work forces the parties to focus on the risks and rewards of going to trial.

I can’t rely solely on the parties’ briefings. I must do my homework, too.

Most settlements come down to hitting the right balance between fear and greed. A timid party may settle too cheaply. A gambler looking for a big score may reject reasonable offers and recover less at trial.

I stack 10 or more trials for each trial week. Often, none of the cases go.

Sometimes I arrange for two courtrooms and line up a second judge to try two lawsuits during the same week. My caseload would quickly become unwieldy if I didn’t manage my cases.

Judge J. Layne Smith is a bestselling author and public speaker. He serves Florida’s Second Judicial Circuit.

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