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Remote hearings for civil cases may be the norm going forward

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Chief Judge Michael T. McHughRemote hearings would be presumed acceptable for civil matters under a permanent rule change that the Supreme Court’s COVID-19 Workgroup will recommend to the Florida Supreme Court.

The proposal is one of many designed to deal with the backlog of cases that has accrued since the pandemic halted jury trials in March, 20th Circuit Chief Judge Michael McHugh told an October 19 meeting of the Bar’s COVID-19 Pandemic Recovery Task Force.

“One of the things that we felt very strongly about is that we needed to move family and civil [cases] forward,” said McHugh, discussing the court’s civil subgroup’s proposed requirements and evaluation criteria for the jury trial project. “So, one of the first things that we recommended is the fact that we could swear people in remotely, also, a presumption that remote hearings are acceptable, so that parties can’t simply opt out.”

The court will seek public comment, and possibly refer some proposals to relevant rules committees, before authorizing any of the changes, Judge McHugh said.

“I expect that it probably will be handled in an expedited manner, however,” Judge McHugh said.

Remote hearings may not be appropriate for all cases, but a presumption would discourage unnecessary delays, Judge McHugh said.

“One of the concerns that we’ve had is, that within litigation, you often have one party who wants to move a case forward and another party that maybe isn’t as interested in moving that case forward,” he said. “We didn’t want to give one party veto power.”

COVID-19 task force member Sia Baker-Barnes, a West Palm Beach attorney who is also a board member, praised the proposal.

“I’m a civil practitioner, and from my perspective, we’ve found it to be efficient, I think — to use the chief justice’s words — to get our cases ‘trial ready.’”

Remote technology has proved a useful and popular tool in the past seven months, Judge McHugh said, but “the elephant in the room is jury trials.”

The recent resumption of criminal jury trials across Florida opened a narrow window for civil cases, Judge McHugh said.

“We had our first regular civil jury trial last week in the state of Florida, where it was actually in the courtroom,” but with protective health measures, he said.

Judge McHugh said he recently set aside two weeks of his docket for civil jury trials, but they were scheduled on a standby basis, commencing only if a criminal jury trial fell through. The improvisation worked, he said.

“I had 10 cases on each week, I think three of them we did give continuances based on different health concerns…but the other seven, both weeks, settled,” he said. “You put them on the docket and they tend to go away.”

Health restrictions will greatly limit the number of jury trials that most courthouses can accommodate, Judge McHugh said, and criminal cases will receive priority.

“In the county that I’m sitting in right now, our jury assembly room holds 375 people, pre-COVID,” he said. “If we social distance and put people in there, it holds 75.”

Even if a COVID-19 vaccine emerges early next year, health restrictions will be a reality for the foreseeable future, Judge McHugh said. The health crisis is devastating the economy and threatening the resources available to address the backlog, he said.

“We’re kind of dealing with a double whammy right now,” he said. “So, at the same time we are asked by our Legislature to figure out 8 to 10% reductions in our budget based on the estimated tax revenue that’s coming in, we’re also trying to deal with a backlog that is very real.”

Civil cases can continue to be set for trial on a standby basis, or they can agree to participate in one of five remote civil jury pilot programs that Chief Justice Canady authorized in June, Judge McHugh said. A time-certain schedule should make the remote option more appealing, Judge McHugh said.

The chief justice recently extended the pilot program’s October 2 expiration date. A hybrid trial with remote jury selection, and two fully remote trials, were conducted in the 11th and Fourth circuits respectively, and surveys showed they were successful, Judge McHugh said.

“The jurors absolutely loved the remote process…they loved it for a number of reasons,” he said. “They were able to do it in a place that was convenient for them, and they didn’t have to come to the courthouse and be around a number of people.”

But the pilot program’s success has been uneven, Judge McHugh said. He has been unable to find willing parties for the 20th Circuit pilot, and the same goes for the Ninth Circuit, he said.

“We did indicate that it was 100% voluntary,” he said. “Quite frankly, that has been a huge hurdle.”

California had a similar pilot program, but made it mandatory. One litigant, the Honeywell Corporation, objected, but an appellate court is allowing the experiment to continue before weighing in, McHugh said.

Florida is not considering making remote jury trials mandatory, Judge McHugh said, but “at some point, if this goes on too long, do we get to the point where we have to start talking about that?”

COVID-19 Pandemic Recovery Task Force Chair Michael Tanner said his panel will consider ways to promote better participation in the pilot. He suggested promoting it on the task force’s newly redesigned COVID-19 Resources and Information webpage,

Tanner asked Judge McHugh about a Trial Lawyers Section white paper, commissioned by the task force, that recommended solutions for dealing with the backlog.

The white paper called for increasing the use of senior judges, the temporary assignment of county judges to serve as circuit judges, and the potential use of special “trial masters,” or prominent attorneys who would be designated to serve as “private judges.”

The workgroup has been weighing those ideas, Judge McHugh said.

There will be an adequate number of senior judges when there is space to assign trials, Judge McHugh predicted. County court judges will likely be temporarily reassigned to serve as circuit judges, “but we’ve got to be smart about it,” he said.

“I’m probably not going to put a county judge who only does criminal work in a three-week med-mal trial,” he said. “At the same time that our dockets are being devastated, so are the county courts’…it’s going to have to work both ways, county helping circuit, and circuit helping county.”

The courts lack authority to assign “special masters” or private judges to hear cases if litigants don’t agree, Judge McHugh said. But that doesn’t mean parties shouldn’t explore creative ways to resolve their disputes, he said.

“The ability of individual cases to move forward is only limited by their imagination,” he said.

Cory Brandfon, the newest task force member and chair of the Family Law Rules Committee, asked if the COVID-19 Workgroup is considering another alternative for dealing with the backlog.

“From my perspective, one of the things that’s happening in family law is that people have come to see the benefit of alternative dispute resolution over time,” Brandfon said. “What, if anything is being done…to promote alternative dispute resolution as a viable option?”

Judge McHugh agreed that ADR is a valuable tool, but he said the workgroup hasn’t considered a specific rule.

“I don’t think there has been any discussion as far as rule changes to make it mandatory,” he said. “It’s simply, we are talking to the individual judges, and saying, you have got to move your cases forward, if you don’t do innovative things to move your cases, you are facing a disaster.”

Later in the meeting, Tanner said the task force will be turning its attention to the future, and the post-COVID legal environment.

Tanner announced that he has appointed a “Post-Pandemic Remote Proceedings Subcommittee,” a “Future Challenges to the Legal Profession Subcommittee,” and a “Section Outreach Subcommittee.”

Because the Trial Lawyers Section white paper recommendations were dependent on available resources, Tanner said he invited 20th Circuit Judge Margaret O. Steinbeck, the chair of the Trial Court Budget Commission, to address the committee at its next meeting on November 2.

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