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Supreme Court workgroup responds to comments on its proposals to speed the resolution of civil cases

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The panel warned that the proposal represents a 'sea change' from an existing trial culture where case resolution is largely driven by lawyers and litigants

Florida courtsThe Supreme Court’s Workgroup on Improved Resolution of Civil Cases has agreed to make a host of revisions to its groundbreaking proposal to impose “structured case management.”

In a September 19 response to nearly 70 comments, the panel agreed with many of the requests, but it declined to recommend phasing in the changes, or to eliminate proposed sanctions.

The panel warned that the proposal represents a “sea change” from an existing trial culture where case resolution is largely driven by lawyers and litigants.

“The Workgroup understands that such proposed change causes skepticism, hesitation, and fear; however, it is the Workgroup’s position that the proposed amendments will improve the speed of case resolution while affording all litigants due process of law,” the response states.

Filed January 10 with a 544-page report, the proposal recommends amendments to Rules of General Practice and Judicial Administration, Rules of Civil Procedure, Small Claims Rules, and Rules of Mediation.

Modeled after the federal system, the proposal would create a “differentiated case management” system that requires setting an inflexible trial date at the beginning of a case, and deadlines for filing motions and rendering orders.

The deadlines and other provisions would be enforced by sanctions that could include attorney costs and fees, and case dismissal.

In its response, the panel referred to general concerns that the proposal will add “too much stress and strain to the already limited resources of the trial courts,” and require “significantly more trial court judges and court staff….”

“Additional resources and education may be necessary,” the panel acknowledged, adding that it would recommend that the Supreme Court direct the Florida Courts Technology Commission to “determine if additional technological functionality would facilitate trial court compliance with proposed amendments.”

“The use of technology to automate compliance can obviate or significantly mitigate the need for additional judges and court staff,” the panel wrote.

The FCTC is already implementing changes to the Court Application Processing Systems, or CAPS, and Clerk Case Maintenance Systems, or CMS, to accommodate an earlier Supreme Court administrative order addressing case management, the response notes.

The Supreme Court should also direct the Trial Court Budget Commission to determine costs and funding sources “for needed technology resources that may be identified by the FCTC, as well as for staffing and other resource needs that may be identified by the trial courts for aspects of the requirements that may not be subject to automation,” the panel wrote.

The workgroup said the appropriate Bar sections and committees should be directed to develop CLE for attorneys that “focuses on the new CMRs, particularly discovery practice; the case management timetable under the amended rules; motion practice; sanctions; dismissals for failure to prosecute; and technology best practices.”

It added that “education on professionalism should also be emphasized.”

The Florida Court Education Council should be directed to develop training and continuing judicial education programs for court staff and judges, including “proactive case management,” the response states.

And the Florida Court Clerks & Comptrollers should be directed to “develop training on the practical aspects of case management under the amended rules, including the use of technology,” the panel wrote.

Some commenters warned that the proposal would create access issues by making the courts harder to navigate, especially for low-income and pro se litigants.

But the workgroup disagreed, saying the proposal will increase access.

“The proposed amendments will provide transparent and uniform notice to attorneys and litigants statewide of the procedures and deadlines they must satisfy throughout a civil case, rather than leaving such matters to be inconsistently addressed at the local or case-by-case level,” the response states. “Under the proposed amendments, hearings and trials will be scheduled and rulings will be entered by the court within specified periods, thereby, ensuring that cases do not languish due to reasons attributable to the courts.”

Many commenters expressed a concern that the workgroup proposal would do away with a “willfulness standard” that requires a court to determine a violation was “willful” before imposing a sanction.

The workgroup said the proposal would not “completely eliminate the standard,” adding that the dismissal of a case with prejudice “may well still require a finding of willfulness or bad faith.”

However, the workgroup said the standard needs to be addressed because it “frequently hamstrings” courts from correcting bad behavior.

“Indeed much, if not most, attorney misconduct goes unpunished because of the inability of the trial court to make the required findings,” the response states. “By recommending these rules, the Workgroup intends to make it easier to hold attorneys and parties accountable for their improper conduct.”

The Business Law Section, the Federation of Defense and Corporate Counsel, and other groups urged the workgroup to recommend “proportionality” standards for the scope of discovery, “per the federal rules.”

But the workgroup cited several reasons for rejecting the recommendation, including that the courts are continuing to deal with the COVID-19 workload, the implementation of the case management requirements of the Supreme Court administrative order, and the “continuing effect of jurisdictional changes between circuit and county courts.”

The workgroup also cited “fundamental resource disparities” between the federal bench and the state bench that would create “a meaningful potential that proportional discovery will result in additional delay in the resolution of civil cases.”

However, the workgroup noted that existing discovery rules, including cost-shifting and protective orders, “can effectuate the larger purpose of proportionality with prompt and effective judicial enforcement and implementation.”

“The existing rules provide for consideration of ‘proportionality’ factors,” the response notes. “In addition, the workgroup addressed ‘proportionality’ in its proposal as follows: proposed rule 1.200(a) establishes [10] ‘objectives’ for case management, and subdivision (a)(4) includes certain ‘proportionality’ criteria consistent with the federal standards — and existing Florida law.”

The workgroup said it would recommend that the Supreme Court delay wholesale adoption of the federal “proportionality” standards until the effect of the other changes on the state courts system are implemented and evaluated — or refer the matter to the Civil Procedure Rules Committee.

Commenters also raised concerns about the availability of hearing time, an issue the workgroup acknowledged could pose “a real impediment.”

“However, once up and running, case management increases hearing availability and reduces delays to resolution,” the panel wrote. “Because all 20 judicial circuits are already engaging in case management via local administrative order, the initial influx of case management issues is expected to be somewhat diminished due to these existing practices.”

The response also notes that the Supreme Court “Workgroup on Judicial Practices in the Trial Courts” is studying the issue and expected to issue recommendations early next year.

Agreeing with a comment by the Statewide Office of the Guardian ad Litem, the workgroup proposed amending Rule 1.010 to exclude “proceedings in the juvenile division of the circuit court to which the Florida Rules of Juvenile Procedure apply.”

The workgroup agreed “in principle” with comments by the Real Property, Probate and Trust Law Section, and recommended exempting probate, guardianship and trust proceedings from Rule 1.200(b), “unless agreed to by the parties, accepted by the court, or authorized by another rule of procedure.”

Conceding that it “lacks the expertise” to fully address the issues raised by the comments, the workgroup said it would recommend that the Supreme Court refer the matter to the Probate Rules Committee, “in consultation with the RPPTL and Mr. Laird Lile, to promulgate case management rules for PGT cases.”

Lile, a Florida Bar Board of Governors member, filed a comment addressing the issues, stressing that he was doing so only as an individual.

In other action, the workgroup agreed to clarify certain filing deadlines, and modify page limits for motions, responses, and replies.

But the workgroup declined many requests to eliminate page limits altogether.

“Page limits have served the appellate courts well for decades and will encourage litigants to set forth their positions cogently and concisely, which in turn will save time for opposing counsel and judges,” the response states. “Moreover, it is anticipated that judges will be able to rule on motions to exceed page limits without a hearing in most circumstances.”

The workgroup also addressed concerns that some litigants may “frustrate” the meet-and-confer process “by engaging in dilatory tactics for strategic gain.”

The workgroup said it would propose a comment to offer guidance.

“The proposed guidance makes it clear that delay in the ‘meet and confer’ process is unacceptable and may result in sanctions.”

The workgroup response was filed in In Re: Report and Recommendations of the Workgroup on Improved Resolution of Civil Cases, Case No. SC22-122. It can be found here:



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