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New summary judgment standard in Florida may take some getting used to

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'For the folks who are not federal practitioners, it’s going to be a sea change'

Scales of JusticeThe Florida Supreme Court’s recent adoption of the federal summary judgment standard will bring more order and clarity to litigation, but challenge lawyers who lack federal experience.

Those are just some of the conclusions reached by state and federal judges and prominent lawyers who participated in the April 30 ABOTA Ft. Lauderdale seminar: “The New World of Florida’s 2021 Summary Judgment Rule.”

The seminar was scheduled just ahead of the May 1 effective date of a December Supreme Court decision to amend Florida Rule of Civil Procedure 1.510 (Summary Judgment.)

After oral arguments and considering dozens of comments, justices on April 29 announced they would largely adopt, “with some exceptions for timing-related issues,” the text of Federal Rule of Civil Procedure 56.

Moderated by ABOTA Ft. Lauderdale President Brent Reitman, the panel included U.S. District Judge Raag Singhal, of the Southern District of Florida; 17th Circuit Administrative Judge Carol-Lisa Phillips; 17th Circuit Judge Jeffrey Levenson; Plantation trial attorney Joseph Kashi; and Palm Beach Gardens appellate specialist Andrew Harris.

Reitman began the discussion by turning to Judge Singhal, who served as a 17th Circuit judge before being appointed to the federal bench by President Donald Trump in 2019.

“Judge Singhal, you had the ability to experience both of these rules,” Reitman said.

Judge Singhal urged practitioners to read a 2002 Florida Bar Journal article by Thomas W. Logue and Javier Alberto Soto. They recommended that Florida follow the lead of 35 other states that had “modernized” their rules to bring them more in line with the federal standard.

The authors wrote that Rule 1.510 had been applied inconsistently as either a “derogation” of constitutionally protected right to trial, or as “a means of expediting the disposition of baseless litigation.”

(Read the Journal article here.)

Florida courts began applying a more restrictive interpretation of the summary judgment rule in the 1960s as the severity of the cases rose from slip and fall to catastrophic injury, the authors noted.

The impact of the latest change remains to be seen, Judge Singhal said, but he acknowledged that he had to get used to federal procedures that were stricter and “had more teeth.” He described federal trial orders with “two full single-spaced pages” of instructions for filing and responding to motions for summary judgment.

“If the Florida Supreme Court is saying we’re going with federal Rule 56, I would really expect that my state colleagues would adopt this kind of order, and set out some real rules in terms of how to state the facts, how to oppose the facts, and try to iron out, look, is there a genuine issue or material fact or not?”

Reitman noted that the Supreme Court’s amendments give a moving party 40 days prior to the hearing to file a motion for summary judgment, and the non-moving party 20 days to respond.

The amendments are designed to eliminate “gamesmanship” and to allow more robust argument, Reitman noted. He asked Judge Levenson if he was pleased with the new timeframes.

Judge Levenson said he was “thrilled.”

“I would get responses at 3 in the morning the night before — look, I’m good, but I’m not that good,” he said. “I, like my colleagues on the civil bench, we take pride in reading and being prepared for the hearing.”

The new rule will work both ways, Levenson cautioned, noting that motions for summary judgment are filed against affirmative defenses as well.

“What’s good for the goose is good for the gander,” he said.

While the new rule creates an orderly process, it will also require judges to rule with more specificity when they grant or deny motions for summary judgment, Judge Levenson said.

“The Supreme Court has been very specific, judges must make explicit findings,” he said. “That’s going to be a real challenge, we’re going to have to be on our toes to get it right.”

Judge Singhal noted that Florida state judges share access to staff attorneys and will find the requirement challenging.

“When you take the sheer number of summary judgment motions, and the lack of help, I think it’s really a daunting task, particularly for judges in big counties like Broward,” he said.

Seventeenth Circuit Judge Carlos Rodriguez said the new summary judgment rule, combined with a crush of pending cases from the COVID-19 pandemic, and new case management orders, will put more pressure on his already tight schedule.

“Now we’re going to have a motion calendar, special sets, and starting on Monday, case management conferences on every case in our division — we’re going to have a time crunch,” he said. “I’m going to apologize for everyone in advance for my new attitude.”

Judge Phillips assured the audience that motions for summary judgment that are currently pending will have an opportunity to be heard, although she has not yet worked out a procedure.

The new summary judgment rule will require practitioners to pay closer attention to deadlines and work harder at preparation, panelists said. Some lawyers will find it easier than others, they said.

“For the folks who are not federal practitioners, it’s going to be a sea change,” said Harris, the appellate specialist. “The rules have teeth.”

“If you haven’t handled cases in federal court before, this is going to be quite a culture shock for you,” Kashi agreed. “You’re not going to be able to shoot from the hip on summary judgment anymore.”

Hearings for summary judgment will necessarily be shorter, Judge Levenson warned.

“I get requests all the time for two hours for summary judgment,” he said. “If we all follow the rule, there is no reason why we cannot have a hearing, no more than 30 minutes, maybe even 15 minutes.”

Still unresolved, panelists say, is whether after moving parties file for summary judgment, and nonmoving parties respond, whether the new rule will permit a reply.

“I think the plain text of the rule does not allow for a reply,” Harris said. “When I file a motion for summary judgment, I’m going to take the approach that this is our one shot.”

Florida Bar board member Diana Santa Maria asked the panelists how the new rule treats video evidence.

Judge Phillips noted that the question is at the heart of a case that gave rise to the adoption of the new rule, Wilsonart, LLC, et al. v Miguel Lopez, etc., Case No. SC19-1336.

The Wilsonart ruling involved a wrongful death case stemming from a fatal rear-end car crash. The trial court granted summary judgment to the defense because video evidence from the front automobile’s dash camera appeared to refute the plaintiff’s account of the accident.

The Fifth District Court of Appeal acknowledged the evidence but reversed because the trial judge’s actions involved weighing competing evidence. But the DCA certified a question to the Supreme Court on whether there should be an exception to the state’s summary judgment rule for video evidence that appeared unaltered or un-doctored and refuted any conflicting evidence by the party not moving for summary judgment.

The Supreme Court had requested briefing in that case on whether it should address Florida’s summary judgment standards, but ultimately decided it was best to make the change in a rules case.

“I think that’s right on point, because that’s how we all got here today,” Judge Phillips said. “I think video evidence is very important, and it will be important in the future.”

The seminar, which is certified for CLE, can be viewed at the ABOTA Ft. Lauderdale website, abotaftl.org.

The court acted in In re: Amendments to Florida Rule of Civil Procedure 1.510, Case No. SC20-1490.

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