November 1, 2020 Letters
Playing the Game?
The most sincere compliment I ever received was from opposing counsel in a medical malpractice trial. He told the jury that I was “a master of half-truth.” It is certainly better to be a master than a novice. Hence the compliment. I thought it better not to thank him then and there.
Half-truth is the business that trial lawyers are in. We present what helps our case and try to exclude what does not. That is not unethical; it is simply how the game is played. And it is a game. If we had abolished the right to jury trial in civil cases, as the British have done, the game would be played differently. But then plaintiffs’ lawyers could not settle cases of dubious liability as easily as they do now.
Ponte Vedra Beach
I laud the court’s efforts to “get creative” with its Judicial Panel Case Resolution Program as a means to address its burgeoning docket and COVID-related trial delays’ apparent impact on voluntary settlement of disputes.
However, I question part of the asserted rationale. Judge Bailey is quoted to have said, “We looked at the proposal of non-binding arbitration and sort of concluded that judicial settlement conferences were more clearly authorized under existing rules,. . . [emphasis added].”
I am not sure what she means. Court-referred non-binding arbitration has been authorized by both Fla. Stat. §44.103 and Rules 1.700, 1.800 – 1.820, Fla. R. Civ. P., since 1987. The process has been underused in many circuits until recently but, over the past two or three years, several circuits have begun to recognize non-binding arbitration’s utility in helping courts manage their dockets; this is particularly the case in light of the COVID pandemic.
As I say, the 11th Circuit’s proposed process is a useful arrow for the court to have in its quiver, but I would certainly suggest the court not overlook non-binding arbitration — especially if the reasons for doing so is a belief that the process is not “clearly authorized under existing rules.”