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Court workgroup recommends ways to reduce ‘sham and vexatious’ litigation

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Supreme Court of FloridaA Supreme Court workgroup has concluded that better education, including for lawyers and judges, would be the most effective way to reduce “sham and vexatious” litigation — but potential rule and statute revisions, and better E-Filing Portal procedures, might also help.

“The workgroup notes that its foremost recommendation is education,” the panel stressed in its final report.

Former Chief Justice Charles Canady formed the “Workgroup on Sanctions for Sham and Vexatious Litigation” in December 2021 and appointed 17th Circuit Administrative Judge Carol-Lisa Phillips as chair.

In Supreme Court Administrative Order SC21-62, Canady defined sham and vexatious litigation as “legal proceedings that are unwarranted, inherently false, without good cause, or filed solely to harass the opposing party, are burdensome and costly for the defendant; and abuse the judicial process and waste limited court resources.”

The panel included appellate, circuit and county judges and a court clerk. It was given six months to review existing rules and statutes, survey judges, court staff and court clerks, and to recommend any rule and statute revisions that may be warranted.

The panel divided its final recommendations into four categories —education, operational changes, potential rule amendments, and potential statutory amendments.

Florida laws and rules of court procedure identify “a multitude of tools” that can be used by judges, litigants, and attorneys to address “improper litigation,” but they are scattered across the rule and statute books and use varying terminology to define the same litigation, the report warns. The result is a “complex and frequently overlapping system for enforcement that varies greatly based on the litigant’s status as pro se or represented, a prisoner, an indigent prisoner, an attorney, or other status…,” the report states.

The panel recommended, among other things, that the Supreme Court ask lawmakers “to consider consolidation of the many statutes set forth in numerous chapters of law into a single chapter that addresses sanctions for improper litigation.”

Florida E-Filing Portal procedures could be improved to better screen pro se litigants who have been subject to special court orders, or to flag cases that litigants improperly designate as “emergency” filings, the report notes.

Existing rules of court procedure authorize motions to strike “redundant, immaterial, impertinent, scandalous, and sham,” matters in pleadings, but they do not contain sanctions, the report notes.

“Some judges also noted that the terminology used in these rules is ambiguous and not understood by attorneys or self-represented litigants, and that parties sometimes improperly use these motions when what they are in fact filing is a response that disagrees with a pleading,” the report states.

The Supreme Court should refer the judges’ suggestions to the relevant Bar rules committees for review “and if determined warranted, for the proposal of rule amendments to implement the suggestions,” the panel recommended.

The workgroup identified three potential areas for statutory changes, including a public records exemption for “scandalous, sham, and other improper matter” stricken from filings under rules of court procedure, if they have the potential to “defame or harm,” a litigant or third party.

The report recommends separate education programs for trial court judges, court staff, clerk staff, and attorneys.

Programs for trial court judges should include instruction on “the multitude of tools in the laws and rules and provide best practices for use,” the report recommends.

“Additionally, bench cards with checklists for the requirements and template orders to impose sanctions, under the statutory sections and the court’s inherent authority discussed in this report should be developed where appropriate,” the report states.

Educational programs for court staff “should be developed on best practices for addressing filings that constitute improper litigation and, where appropriate, interacting with individuals who file improper litigation,” the report states.

Educational programs for clerk staff should focus on “their statutory duties under sections 57.085 and 68.093 and on the necessity to reject filings from pro se litigants when court orders prohibiting such filings exists,” the report states.

Educational programs for attorneys “should be developed to instruct on the multitude of tools in the laws and rules and provide best practices for use,” the report states.

The Florida Courts Education Council, the Florida Court Clerks & Comptrollers, and The Florida Bar should develop the respective education programs, the report states.

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