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Bar comments on court’s COVID-19 Workgroup rules petition

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Lady JusticeThe Florida Bar is not recommending changes to a Supreme Court COVID-19 Workgroup rules petition regarding remote technology, but it is suggesting committee notes or court comments.

The proposed amendments are designed to facilitate greater use of remote proceedings and center on a proposed rewrite to Florida Rule of General Practice and Judicial Administration 2.530 (Communications Technology). The petition also encompasses six other rule sets — Civil Procedure, Criminal Procedure, Probate Rules, Traffic Court, Small Claims, and Appellate Practice.

In a comment filed September 27, the Bar states that it monitored the discussions of the Rule of Judicial Administration Committee and will defer to its “thoughtful and conscientious work….”

However, the Bar suggests committee notes or court comments that, among other things, reflect a Bar survey that was emailed to nearly 4,000 members in January.

More than 1,000 responses were received by a January 27 deadline, generating a 34% response rate, which is considered robust, according to the comment. It also notes that the survey reflects a wide range of practice areas.

Most Bar members preferred the use of remote court proceedings, but only for routine and low-impact matters, according to the comment.

“The survey generally demonstrated that a great majority of practitioners preferred to continue conducting routine and non-evidentiary matters within their practice area via Zoom or similar virtual platforms,” the comment states. “However, practitioners preferred to return to in-person proceedings for evidentiary hearings and trials.”

The board said it recognizes that limited use of remote technology promotes the “efficient delivery of legal services.”

However, the board emphasized the need to balance those benefits with a presumption, built into court rules and caselaw, “expressing a preference for in-person proceedings and testimony in matters of substantive importance in which due process rights must be protected, and the integrity and dignity of the justice system safeguarded.”

The board also recommended a comment or note stressing that trial judges “are in the best position to balance these interests.”

The board also suggested that the Supreme Court review the use of remote proceedings in the “near future.”

“Only through such cautious implementation and careful evaluation of change can the balance described herein be ensured,” the comment states.

The COVID-19 Workgroup, chaired by Ninth Circuit Chief Judge Lisa T. Munyon, is formally known as the Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19.

Judge Munyon said the proposed amendments in the July 1 petition are largely permissive.

“The main focus of our rule package was to permit virtual rules to continue, to provide for virtual oaths to be administered remotely, and to authorize the use of virtual hearings under many circumstances,” Judge Munyon said.

During its deliberations, the COVID-19 Workgroup recognized a need for “greater subject-matter expertise” when it comes to rules governing delinquency, dependency, and family law.

Chief Justice Charles Canady agreed and ordered the Steering Committee on Families and Children in the Court to develop proposed amendments for those matters by December 31.

Last month, the Supreme Court granted a motion by the Florida Civil Legal Aid Association to extend the comment period until September 30. The workgroup has until October 21 to respond.

On the same day the Bar filed its comments, the Juvenile Court Rules Committee and the Civil Procedure Rules Committee filed theirs.

The Juvenile Court Rules Committee acknowledges in its comments that the petition is not drawn to its rule set.

However, the committee said the proposed changes to Rule 2.530 (Communications Technology) “will certainly impact juvenile proceedings.”

“Thus, the JCRC provides this comment to the Court to explain that impact, to request that the Court exempt juvenile proceedings from the proposed amendments, and to explain the work that the JCRC is currently engaging in to address continuity of proceedings during and after the pandemic.”

The Juvenile Court Rules Committee is concerned about a provision that would require a judge to grant a motion to use communications technology for non-evidentiary hearings lasting 30 minutes or less.

“There are multiple non-evidentiary juvenile proceedings that may not be appropriate to conduct using communication technology, such as detention, plea, arraignment, and advisory hearings,” the comment states. “These types of proceedings often require that the court provide parties with statutory advisements or require that a party personally appear.”

The Juvenile Court Rules Committee is working with the Rules of General Practice and Judicial Administration Committee on proposed amendments, the comment notes.

The committee, in its comment, proposes adding the following language to Rule 2.530(c)(1) that would state that the court must grant a motion to use communications technology in non-evidentiary hearings lasting 30 minutes or less, “unless the court official determines that good cause exists to deny the motion or the proceeding is governed by the rules of juvenile procedure.”

In its comment, the Civil Procedure Rules Committee is largely supportive.

“The CPRC recommends adopting many of the changes proposed by the Workgroup to the Florida Rules of Civil Procedure,” the comment notes.

The committee recommends amendments to eight rules — 1.310, 1.320, 1.430, 1.440, 1.700, 1.720, 1.730, and 1.750 — but some of the recommendations involve clarifying language or the removal of “excess verbiage.”

One of the committee’s proposed changes — to the workgroup’s proposed amendments to Rule 1.430(d) — would correct a technical error that would prevent the use of remote technology.

“As written, rule 1.430(d) would preclude a trial by audio-video communication technology when the trial court and parties agreed, unless both the stipulation and motion were filed within sixty days of the jury trial demand,” the comment states.

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