In December, the Florida Bar News published an interesting expose of a proposal to make "sweeping changes" to the "civil trial system." The article initially escaped my attention in the digital world (I do not visit the Bar site often, and have admittedly seen most Bar emails shifted to "spam"). But, late in the month, my trusty paper copy of the News arrived in the mail. I will spare the typical explanations of "paper" and "mail," as you can look either up in your Funk and Wagnalls.
In 2019, the Supreme Court became concerned with the volume of civil cases in Florida, and the processes by which they are governed. Recognizing an opportunity for improvement, it formed a workgroup that began considering the challenges that litigation portends. The process has been extended in light of the pandemic, but has proceeded with admirable speed. There was recognition at the outset both that change is challenging, and that Florida has not led in regards to civil process reform. The Chair of the workgroup, Judge Morris, noted that “just about every state and every jurisdiction has made an effort to manage this — the federal system did it decades ago.”
Thus, there are models out there for consideration. Justice Carlos Muñiz noted, however, that the purpose of this effort is not "to merely copy the federal system or other states." Instead, the charge is "to make Florida 'the envy of the nation.'" That is, to rethink the civil litigation process and to refine the goals thoughtfully so that process is focused upon the objective: delivery of impartial adjudicative services. That is a significant challenge in a "civil system that is (currently) struggling to resolve 2 million cases." It is worth reiterating that Florida is now the third most populous state in the country, and nearly 1,000 people move here each day. In short, this state has a large and somewhat complex system to study, and the workgroup has moved forward admirably.
The result of the workgroup effort is "a 184-page report" recommending various changes; that report is on the way to the Supreme Court, but has not been made public. However, some who have reviewed the recommendations conclude that "This is a major paradigm shift,” and have even "called the proposal 'seismic.'” The President of The Florida Bar characterized the recommendations as "sobering.” Translation, there are significant changes being recommended and they may disrupt the habits of us all.
Once the Supreme Court has reviewed the report, there will be discussion of proposals. A lengthy "comment period" is predicted, in which the public and practitioners may weigh-in regarding ideas for more expeditious adjudications in civil matters. The overall charge is two-fold: to (1) “ensure the fair and timely resolution of all cases through effective management” and (2) to “utilize caseload and other workload information to manage resources and promote accountability.” The importance of public comment cannot be overstated when such a potentially "sobering" and "seismic" set of reforms is possible.
The prediction regarding this new process includes that lawyers, or parties, would discuss civil litigation early in the process and "craft a case management order that would set a trial date and deadlines for completing such tasks as discovery, dispositive motions, and depositions." Cases would be "differentiated (in a) case management system that would require judges to divide cases into 'streamlined,' 'complex,' or 'general,' categories." This methodology is designed to "set out the game plan early on," including selecting deadlines. The article predicts that continuances would be less frequent. The workgroup chair predicts "continuances are going to be very difficult to get in this new world” (note the word is not "impossible," but "difficult"). There is also mention of shorter time frames regarding failure to prosecute, "standards for conduct of depositions," and more.
And, there is some explanation as to justification for that. First, as noted, the trial date will be somewhat within the influence of the parties in those early conversations and the resulting "case management order." Another is a recommendation that judges speak "with one another when lawyers have conflicting trial dates." There is currently a process for calendar conflicts in the Florida Rules of General Practice and Judicial Administration, Rule 2.550. However, the current rule does not specifically address judges communicating. The rule acknowledges that there are potentials for conflict between state and federal scheduling. Of note, such conflicts can also be experienced as regards court proceedings and administrative proceedings. There are many potential conflict perils for attorneys. Notably, in the workers' compensation practice, communication among judges regarding such calendar conflicts is commonplace, but less so when the conflict is court-related.
The onus of the discussed changes is not all on the parties or lawyers. The workgroup report also discusses timely adjudications and orders. Judges would be "required to render decisions within 60 days," and to report when they fail to do so. Some say that requirements may be "impossible" for judges in some settings due to the volume of litigation pending in a particular jurisdiction or court. I have heard such prognostications of impossibility before, and seen it proven wrong a time or two. Perhaps we are all capable of upping our game when we are given standards and expectations?
The chair of the workgroup suggests that one path is to acknowledge that the change cannot occur due to such pressures (preemptively admit defeat), and that a second potential path is to change the system in hopes that "the Legislature will change the dynamics” with greater resources. And, possibly, there could be a third option (see below). The Florida Bar President, Michael Tanner, noted that there are circumstances outside the control or even influence of judges or lawyers. He noted that expert witnesses in medicine and other specialties may be required in a case and a particular expert's calendar may not be a practical consideration early in a case. He noted that parties will nonetheless largely live with the calendar commitments in those "case management orders" and therefore at times "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."
While it is possible for a "case management order" to address mediation, the report itself reportedly does not delve into the potential for alternative dispute resolution (ADR) to further impact the congested court process. In a word, mandatory mediation has been famously beneficial to Florida workers' compensation. I remember when lawyers unanimously said it would never work, could not work. Many in the early days suggested just admitting it could never work (preemptively admit defeat). But, it worked. And, today there are many states that have built mediation programs in workers' compensation to emulate Florida's success. They have followed Florida's lead to more conversations, more resolutions, and more rapid process through mediation. It is a path worthy of individual consideration despite perhaps not being a focus of the report.
As I read the Bar News article, I am reminded of the days of yore in the world of Florida Workers' Compensation. I am, perhaps, becoming a bit long in the tooth. I was reminded of that when the very same issue of The Florida Bar News noted the passing of R. Michael Hoefges, an attorney with whom I practiced briefly in my early career. He was a couple years older than I, but his passing reminded me of how long I have been circulating through this practice. It is tough when people in your own age group begin to pass and lately it seems I get a reminder on a monthly basis. But, I digress. There are many of us "old dogs," and as we persist in the practice, perhaps we too can learn new tricks?
The early 1990s were tough in Florida workers' compensation. There were various legislative adjustments to the impacts of the "wage loss" experiment of 1979, and other responses to the "recommendations" of the National Commission in 1974; see A 21st Century National Commission (April 2013); Where do We Go From Here (March 2016). As the Florida system sought equilibrium in the early 1990s, various reforms were enacted. The challenge of balancing a system between benefits and burdens has been a persistent legislative challenge.
A primary recollection I was drawn to by the recent Florida Bar News article was the addition of section 440.25(4)(j)(1994). This established the "expedited dispute resolution." The section provided a quick adjudication process for claims "of $5,000 or less." These were "presumed to be appropriate for expedited resolution." They might be, in the vernacular of the recent workgroup report regarding civil case proposals, labeled "streamlined." When I took the bench in Pensacola in 2001, I began setting 25 trials a week on an "expedited" calendar (along with about 75 trials per week on the "normal calendar"). I would select the cases for this process by reviewing the petitions; they were largely mileage, medication, medical testing, physician authorization, and similar claims.
The practitioner's response was highly critical. Lawyers complained that they did not have the time to do the discovery they desired. They noted that obtaining expert testimony was a challenge. On that note, they largely initially ignored the contemporaneous change to section 440.29, the addition of (4), which rendered the reports of all treating physicians admissible ("shall be received into evidence.") without deposition or other testimony. The need for expert testimony over a minor medical issue was perhaps ameliorated by that, but the adaptation to the new process was slow and sometimes reluctant.
There was also the complaint that "no one asked for an expedited hearing." Various lawyers seeking to remove a case from the "expedited" track were chagrinned, at least when the statute was read aloud at a hearing on their motion. The statute is reasonably clear in the "shall, in the absence of compelling evidence to the contrary, be presumed to be appropriate for expedited resolution . . .." (emphasis added). In the end, "expedited" worked. Not that trials were necessary. I believe that I only heard something less than 10 of those cases over the 5 years I presided. What the process accomplished, primarily, is that it got the parties and lawyers speaking, provided a deadline, and facilitated resolution.
The 1994 amendments also put a time limit on final orders. Section 440.25(4)(d) required that the judge would "within 14 days after final hearing . . . determine the dispute in a summary manner." I vividly recall a judge before whom I regularly appeared in those days opining flatly "That cannot be done, never happen." The judge found it inconceivable and alien. Back in those days, judges of Compensation Claims did not draft orders. More often, they drafted letters telling one of the attorneys to draft a "proposed order." As simple as such a letter was, it often took months and sometimes years after trial before such a letter documented the trial outcome. In 2001, that 14 was changed to 30, and the legislature required reporting of late orders to the Deputy Chief Judge. The similarity to the workgroup recommendation in this regard is notable.
Fourteen days? "Cannot be done?" According to the 2020-21 OJCC Annual Report (p. 48), trial orders were issued in less than 30 days that year 92.78% of the time. Before you remind me that 30 is not 14, know that a very significant volume of those trial orders were rendered in less than 14 days. It is conceivable and doable. And, despite the prognostications of such change necessitating resources, the OJCC was provided no additional resources with which to accomplish this paradigm shift (thus, the third potential, see above, that performance will improve). The legislature set standards, leadership expected results, and it turns out that orders could be issued timely after all. The OJCC has been proving that for almost two decades.
Procedural orders are even more rapid. Across the current OJCC, the vast majority of procedural orders are rendered within one business day of their filing (particularly when Rule 60Q6.115(2) is complied with and the parties have already conferred in good faith. Another large volume is rendered within three business days of the "response" period (15 days) in Rule 60Q6.115(4). The moral, it seems, is that the rules can require performance, good faith, and communication. The result is the rapid adjudication of disputes to the benefit of litigants. Some have questioned why the 60Q rules require "good faith" communication when the civil rules do not. I have periodically asked instead why the civil rules do not. Which promotes resolution, good faith or not?
Another of the requirements instituted in 2001 was the deadline for mediations (130 days) and for trial (210) days. I can remember when it might take years to get to trial in workers' compensation. There were similarly those who said that 210 days was impossible or impractical. And yet, the OJCC judges' average time from petition to trial dropped from almost 500 days in 2005 to just over 200 in 2010, where it has since remained (see graph below, 2020-21 OJCC Annual Report, p. 510).
Timely trial is possible, practical, and functional. The key element in that change was creating expectations, enforcing them, and allowing the practitioners to adjust and adapt. And, contrary to the prognostications expressed regarding the recent workgroup report, the relief of a continuance in the right circumstances ("arises from circumstances beyond the party’s control," section 440.25) allows for the appropriate discretion that assures cases are determined on their merits and due process is appropriately protected.
In short, the workgroup report should make for interesting reading. The marketplace will hopefully take the afforded opportunity to read the recommendations and proposals. The public comment opportunity should be taken seriously and engaged by those who have experience in the litigation process as parties, attorneys, witnesses, or otherwise. From that milieu should come conversation, consideration, objectives, definitions, deadlines, and exceptions. And, in the process, perhaps the civil litigation process can be made more predictable, timely, and successful. Perhaps some suggestions for making it the "envy of the nation" lie right here in Florida?
