Eading Attorneys to Judge Shop Through the Strategic Use of Motions for Continuances
Supreme Court considers wide-ranging changes aimed at streamlining civil cases
'Continuances are going to be very difficult to get in this new world'
Chief Judge Robert Morris
The Supreme Court is about to weigh a Judicial Management Council proposal that would bring sweeping changes to Florida's civil trial system, the chair of a JMC workgroup told the Board of Governors.
Addressing the board at a December 3 meeting, Second District Court of Appeal Chief Judge Robert Morris said the proposal is designed to bring greater efficiencies to a civil system that is struggling to resolve 2 million cases.
"Just about every state and every jurisdiction has made an effort to manage this — the federal system did it decades ago," Judge Morris said. "We need to do something about this and it's our time to try and work on it."
Judge Morris warned that lawyers and judges could find the proposed changes challenging to implement, at least at first.
"People don't like change," he said. "This is a major paradigm shift."
One board member called the proposal "seismic."
"The word that comes to mind is sobering," President Mike Tanner said.
The proposed changes are contained in a 184-page report by the Workgroup on Improved Resolution of Civil Cases that Judge Morris chairs. The report is expected to reach justices within days.
But whatever the court decides, justices are expected to schedule a lengthy comment period before any changes are implemented, Judge Morris said.
He urged board members to study the report carefully and notify their constituents to do the same — and to begin preparing comments.
"In order to get buy in by our whole community, we've got to educate people," Judge Morris said. "We've got to get serious about that,"
President-elect Gary Lesser pressed for a timeline. Judge Morris said it's too early to predict, but he said justices are determined to act.
"I think we're 18 months away," Judge Morris said.
The Supreme Court appointed the workgroup October 31, 2019, and ordered it to, among other things, focus on a long-range strategic goal to "ensure the fair and timely resolution of all cases through effective management" and to "Utilize caseload and other workload information to manage resources and promote accountability."
The nine-member panel includes a former justice, trial and appellate judges, a chief county judge, a civil practitioner, and a former Florida Bar president.
The workgroup was directed to study the civil case management recommendations endorsed in 2016 by the Conference of Chief Justices and the Conference of State Court Administrators and "the outcomes of pilot projects or other initiatives that have implemented these recommendations in this and other states."
Justice Carlos Muñiz urged the workgroup at its inception not to merely copy the federal system or other states, but to make Florida "the envy of the nation," Judge Morris said.
"That's their expectation," Judge Morris said. "I don't know if we've delivered that, but that has been our effort and it has taken a lot of effort and energy."
The proposal is based on a differentiated case management system that would require judges to divide cases into "streamlined," "complex," or "general," categories, Judge Morris said.
Lawyers would be required to confer at the beginning of a case and craft a case management order that would set a trial date and deadlines for completing such tasks as discovery, dispositive motions, and depositions.
"The idea is that while there will still be pre-trial conferences at the discretion of a judge, they're just not going to be as important as they once were because this case management order will set out the game plan early on," Judge Morris said.
Deadlines will be strict, Judge Morris said.
"Continuances are going to be very difficult to get in this new world," Judge Morris said. "A trial continuance is going to be extremely difficult to get."
Judges would have to confer with one another when lawyers have conflicting trial dates, Judge Morris said.
Lawyers and judges will find something not to like, Judge Morris warned.
"The pain will be shared in this transition process," Judge Morris said. "It's not just going to be the Bar that is sharing the pain, the judges will be also."
The timeframe for failing to prosecute a civil case could fall from 10 months to six months, Judge Morris said. Lawyers could see a new rule establishing standards of conduct for depositions.
Lawyers could face "extremely toothy sanctions" for violating discovery rules that would include mandatory award of attorney fees and dismissal of a case, Judge Morris said.
Judges would be required to render decisions within 60 days and be held publicly accountable for routine failure to meet the deadline, Judge Morris said.
"And if they don't rule on it in a timely way, they must self-report to the chief judge," Judge Morris said. "You may well say, 'Well, that's great,' but that's a JQC (Judicial Qualifications Commission) violation if they don't."
Board member Michael Orr said he can get a hearing scheduled within 30 days in some counties but waits for months in others. It would be "impossible" for judges who are managing 1,500 to 1,600 cases to meet the new requirements, Orr said.
"I've spoken to judges who can't get their orders out because their workload is so substantial," Orr said. "My question is, was there a discussion from the standpoint of determining the workload that is used for the courts," when asking lawmakers to fund new judicial positions?
Judge Morris responded that workload determination is the "key judicial question of the moment."
"But it's the chicken or the egg syndrome, right?" Judge Morris said. "Are you going to fix the system and push people to the breaking point so the Legislature will change the dynamics?"
Tanner asked if the workgroup considered the frustration many lawyers face when trying to schedule expert witnesses.
"Many expert witnesses are stacked up — particularly in the medical malpractice and engineering areas — and their schedules may not comport with whatever the imposed trial schedule is," Tanner said.
Judge Morris said the workgroup considered the issue but decided not to propose an exception.
"The federal courts have the exact same issues, and they don't care. You've still got to adhere to their schedule," he said. "So, it's not going to be pretty, it's not going to be happy all the time, but you're just going to have to round those experts up or use a different one…. It's not a good answer, but it's all I've got."
Board member Wayne Smith asked if the workgroup considered the timing of mediations, noting early mediation — especially for parties who know each other — can swiftly resolve a case.
The short answer, Judge Morris said, is no.
"But let me explain a little more," he said. "The case management order can address that."
Judge Morris said the changes are necessary, in part, because the public believes Florida's civil system is too slow and too expensive. Some areas of the state suffer from a culture where "dilatory" practice is common, he said.
He cited the Oath of Admission pledge not to "delay anyone's cause for lucre or malice."
"We either need to do something about dilatory practice, the slow resolution of cases, or we need to take that out of the oath," he said.
Source: https://www.floridabar.org/the-florida-bar-news/supreme-court-considers-wide-ranging-changes-aimed-at-streamlining-civil-cases/