Judges and lawyers brace for civil justice changes
'I think it’s one of the biggest changes I’ve seen in my 43 years practicing civil law, and the lawyers need to adjust, they need to get on board'
Chief Judge Jack Tuter
Seventeenth Judicial Circuit Chief Judge Jack Tuter has spent the past several months leading seminars, meeting with the local trial lawyers, and working with colleagues to develop proposed orders.
New rules that frame the Supreme Court’s civil justice reforms take effect January 1, and Tuter expects a sea change.
“I think it’s one of the biggest changes I’ve seen in my 43 years practicing civil law, and the lawyers need to adjust, they need to get on board,” Tuter said.
During oral arguments in November, 13th Judicial Circuit Judge Anne-Leigh Gaylord Moe asked justices to delay implementation to devote more time to judicial training. Justices declined.
Tuter said he has been working with the 17 judges in his circuit’s civil division to make sure they are prepared.
Just how prepared Florida’s civil trial lawyers are remains to be seen. Veteran Jacksonville civil trial lawyer Thomas Bishop, of Bishop Page & Mills, isn’t sure.
Tom Bishop
“There’s a lot of lawyers who unfortunately are ignoring this,” he said. “They are not involved in following these changes, they may have heard whispers and written it off as panic at the front. But their view is, ‘oh, it’s just another rule change.’”
The reforms involve multiple rule changes.
They grew out of a sweeping Judicial Management Council workgroup proposal in 2021 that called for amending the Florida Rules of General Practice and Judicial Administration, the Florida Rules of Civil Procedure, and multiple other rule sets to “promote the timely resolution of civil cases through effective case management.”
Noting that the reforms are based on a federal model, Tuter predicts that switching from a lawyer-driven to a court-driven system in a state as large as Florida will be a challenge.
“The federal courts do not have the volume of cases we have, and they also have two or three law clerks for every judge, and a civil magistrate, to handle a great deal of their workload,” he said.
Florida Bar President-elect Designate Michael Fox Orr expressed the same concern in September when he served as a Board of Governors liaison to the Civil Procedure Rules Committee.
“How will a judge in Orlando who has 3,000 cases on their docket actively manage a case? How will a lawyer who schedules four and five months on their calendar actively manage a case that would be similar to how cases in the federal court system are managed?” Orr told the board.
Orr also warned that the reforms could generate an “uptick” in Bar discipline cases or malpractice claims, and Bishop agrees.
“I think the biggest single change is that the courts are going to impose mandatory case management deadlines right away,” he said. “And that system of very proactive case management, strict deadlines throughout the case, is going to be a huge change for people, and I’m not sure they’re ready for it.”
And that could mean consequences, Bishop said.
“That whole notion of, ‘I’ll get busy when I’m ready to get busy,’ is gone,” Bishop says. “That is where you may see some Bar discipline. You are going to be having lawyers who are doing things like it’s 1996, and some judges are going to force them to trial, which rarely happens nowadays – very rarely.”
Bishop and other Civil Procedure Rules Committee members say the reforms hold much promise. They point to a new “meet and confer” requirement that should help resolving cases with less court involvement.
Bishop says the reforms should address a “culture of continuances and delay” that is baked into the current system.
“Some of it is warranted, a case is ready when it’s ready, and you don’t want to prejudice a party by forcing them to proceed when the case is not ready,” he said. “But that culture of reflexive delay is real, and the profession has been deeply steeped in it, for better or worse.”
Bishop points to a new proportionality rule he says should benefit small business owners. Under the existing system, a small business seeking to recover $400,000 or less could spend nearly that much on discovery, he said.
“But with proportionality, you can craft a resolution to that case where it would be far less,” Bishop said. “It’s a good tool to ensure access to courts, which is very much the way I feel about it. There’s going to be some glass broken in the process, but our current system is too slow and too expensive.”
Seventeenth Circuit lawyers will adapt, just as they did for the foreclosure crisis and a deadly COVID-19 pandemic, Tuter said.
“I’ve always found that lawyers are very adjustable,” he said. “I just hope this doesn’t cause any trips to the cardiologist to check their blood pressure.”
Related: Florida Supreme Court revises civil case management reforms before January 1 implementation
