Sunday, June 3, 2018

When There is a Different Judge

The issue of "the new judge" arises periodically in litigation, and workers' compensation is no exception. In the larger world, judges in Florida are re-elected or not, rotated from courthouse to courthouse within a Circuit, and rotated among divisions or assignments within a courthouse. similarly in workers' compensation Judges may be re-appointed or not. Judges periodically transfer from one district to another. In any litigation system, judges can be ill, take vacations, or even retire. 

There are also instances in which a judge may remove her or himself from a case. Judges independently remove her/himself from cases (called "recusal"), or may remove her/himself from cases from a case because one of the parties asks them to (called "disqualification"). In short, there are simply a variety of instances in which parties might find themselves with a "new" judge assigned to a case in the midst of litigation. The parties to a case may thus find themselves in mid-stream when a new captain takes the helm. 

In Florida workers' compensation, there are only 32 judges, but each of the 17 district offices is linked with the others by the OJCC videoteleconference system. Thus, in the event a judge is unable to preside as scheduled, it may be a judge from down the hall will cover and handle a hearing or trial. But, it is not impractical for a judge hundreds of miles distant to similarly step in by video and preside over a hearing or trial. I have done so myself on various occasions. Attorneys must thus be prepared for the potential for a change in adjudicators, sometimes on little notice. 

A reasonably frequent question in those instances regards the procedural status of the case. Litigation is not a destination, but a journey, or path. There is a tendency to think about the trial itself (destination), and certainly a great deal of decision making and process occurs at trial. But in many cases, there is a great deal that occurs before trial (along the path). 

There may be disputes about what discovery is permissible or required. A party might seek an independent medical examination, the appointment of an expert medical advisor, the production of documents, or the examination of a location involved in the accident or dispute. There can be disputes regarding the admissibility of evidence, whether certain documents will be considered or whether certain witnesses can or cannot testify. There can be debates as to whether expert testimony does or does not meet evidentiary thresholds or standards, such as the so-called Daubert standard. These are common examples, but by no means an exhaustive list. 

Those decisions, those judicial rulings, may be made weeks or even months before the trial. But, those decisions shape the litigation (what the trial will ultimately include). The decisions can refine the course of the litigation (the timing or sequence of events before and at trial). And, those decisions can have influence beyond their specific subject. For example, a judge might grant a motion in limine preventing one party from raising a particular issue or particular evidence at trial; that decision affects that party. However, opposing parties may then, in reliance on the ruling, elect not to call their own witnesses to discuss or refute that prevented ("excluded") evidence. The judge's orders may be relied upon by all the parties in preparing for trial. 

But, what about the change in judges? Fortunately, that is not a new subject. The Florida Supreme Court addressed the issue in 2009 in Larson & Larson, P.A. v. TSE Indus., 22 So.3d 36, 40 (Fla. 2009). The Court noted that “until final judgment is entered, a trial court may revisit any non-final ruling.” 

The Florida Fifth District Court of Appeal explains 
“as a particular legal matter, an interlocutory trial court order merely granting or denying a motion neither adjudicates or judicially settles questions or issues of fact or law. Certainly it determines nothing conclusively or authoritatively. At best it indicates which way the trial judge is thinking and unless he (or she) changes his mind, which way he (or she) will rule when the subject matter of the motion is judicially determined. Traditionally it has been held that trial judges have the right and authority, at any time before entering a final judgment, to change their minds and to change any prior interlocutory ruling." Bravo Electric Co. v. Carter Electric Co., 522 So.2d 480, 480-481 (Fla. 5th DCA 1988).
Other authority of interest in this regard includes: Hunter v. Dennies Contr. Co., 693 So.2d 615 (Fla. 2d DCA 1997); Bettez v. Miami, 510 So.2d 1242 (Fla. 3d DCA 1987); Monte Campbell Crane Co. v. Hancock, 510 So.2d 1104 (Fla. 4th DCA 1987).

It is axiomatic that if a particular judge might change her or his mind about such an issue, certainly a second judge considering an issue might see some issue differently than the first. Thus, when the trial judge changes, any party might seek to have any prior ruling re-evaluated or reconsidered. There may be a perception that the chances for a change in rulings is better with a new judge, than such a request for a judge to change her/his own mind. However, such a request may be more complex than thought at first blush. 

The decision regarding re-evaluating a prior ruling has to also include consideration of the due process rights of all of the parties. Due process requires that parties to litigation receive both notice of proceedings and the opportunity to be heard. That opportunity must be meaningful. Therefore the notice must reasonably define what issues or allegations will be heard. That detail allows all the parties to strategize and plan regarding their individual approach to the issues, the witnesses, or documents each might wish to bring, and the legal arguments each might wish to make. 

In Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004), the court held "it was prejudicial to a claimant for the employer/carrier to raise a defense of fraud in the procurement of employment two days before trial." The claimant, in that instance, was called upon to address the fraud defense in order to prevail. However, two days notice was deemed an insufficient time to appreciate and investigate the allegations, procure or refine evidence regarding the alleged fraud, and to effectively prepare for trial of the new issue. 

Due process has been raised in various other contexts. See, Knight v. Walgreens, 109 So.3d 1224 (Fla. 1st DCA 2013) (improper to consider defenses not disclosed on pretrial questionnaire); School Dist. of Hillsborough County v. Dickson, 67 So.3d 1080 (Fla. 1st DCA 2011)(judge raised statutory issue at hearing and denied employer/carrier opportunity to present evidence regarding it); Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999)("an order that is not in accord with the understanding with which the workers' compensation hearing was undertaken and participated in is a denial of due process and must be reversed"). 

Thus, two legal maxims find themselves in potential conflict. Lawyers in preparation for trial may bear a striking resemblance to teenage motorists engaged in the proverbial game of chicken. Each has plotted a course, and often a collision appears imminent. However, it is not uncommon that logic overrides emotion and one or both swerve prior to collision. The complication with chicken is that each might swerve the same direction, intending collision avoidance, but accomplishing collision nonetheless. The odds on that seemingly increase the closer each gets before electing to swerve (no driver likely ever swerved when the cars were a mile apart, but as space and time diminish, the likelihood of a swerve increase). 

Following that analogy, sound planning and effective action/reaction are perhaps enhanced by possessing time and the opportunity for contemplation and introspection. A tardy change in direction (one driver swerving, one attorney raising a new issue or defense or argument) may leave one's opponent with little or no time for an intellectual or considered reaction; thus, as time decreases the odds of an emotional reaction perhaps increase. And, worse, one's opponent may have already begun a correction of her/his own (a swerve based on the last best-considered perception of one's position, posture, and direction), before perceiving a last-moment swerve of the opponent.

Clearly, a judge may reconsider previous procedural rulings and decisions made along the path to trial. And, as clearly, a judge new to the case for whatever reason is no different. However, any judge must remain conscious of the consequences, intended or otherwise, of such reconsideration. Will that reconsideration result in a material change in the circumstances or beliefs that the parties have labored through and under along that path? Will the change result in surprise to a party? Will the change mean different or additional witnesses or documents are required for trial? Will the change affect the legal arguments or theories that must be presented?

And, as importantly as the "will" questions mentioned, the judge must consider whether there remains sufficient time, after the reconsideration, for all parties to adjust their strategy, preparation, and plans before trial. The change itself might affect prejudice (harm), but I have long said that in litigation time is often the best salve for prejudice. In this regard, a judge contemplating a reconsideration of prior decisions, a change in course, might well consider also continuation of trial to (add time and) afford all the parties a reasonable chance to appreciate and understand the implications of the reconsideration. 

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