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Sunday, January 15, 2023

Civil Rules Reform

Thinking of Bob Seeger this week as I contemplated the latest on the efforts to improve civil case process in Florida courts. In 1980, Seeger penned Running Against the Wind:
"It seems like yesterday, But it was long ago"
And those words resonated in my head when I realized that it was January 2022 when I penned Workgroup Report on Civil Cases. The song is perhaps as fitting because of the title, some are likely feeling like they are against all odds in this endeavor. The 184-page report just over a year ago was intended to set in motion changes "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. And, I reiterate, it seems like only yesterday.

A December 2022 article announced that Aggressive Case Management and Tough Sanctions are Needed to Bring About a ‘Cultural Change’. Florida Bar News, December 10, 2022.  This piece brings us back to the "civil rules proposals meant to ensure 'the fair and timely resolution of all cases." There is a "sweeping rules petition" pending and oral arguments were held in December regarding the Florida Supreme Court's consideration of the proposals.

The culture to which we have evolved, according to the Administrative Judge in Miami-Dade, Judge Jennifer Bailey, is that our civil justice system is failing. She said:
“There’s a fundamental truth that’s being missed here, regular people, they just don’t come to court. They’ve abandoned hope that they can get their problems heard.”
And that is a fairly strenuous indictment. I am not sure who is "regular" anymore, but that subjectivity is for another day. 

The foci of the changes include "aggressive case management" and "tough sanctions." The chair of the Workgroup on Improved Resolution of Civil Cases says that the changes are "needed to bring about a 'cultural change.'” While the Chair's comments are not conciliatory, there is some suggestion of anticipated criticism regarding the sanction discussion. The Chair denies this theme is driven by control issues, but instead stresses that there is a perception of "a growing culture of noncompliance in the absence of consequences for failing to follow the rules.”

The proposal includes ideas like (1) "setting inflexible trial dates at the beginning of a case," and (2) "rigid deadlines for motions and rulings." The process contemplates keeping cases on track with penalties: "Judges and lawyers who fail to meet the timelines would face sanctions, including attorney fees and case dismissals."

I echo, again, that this sounds a bit like the 210-day trial parameter,130-day mediation parameter, and 30-day order parameter in section 440.25. Of course, there are not penalties in those sections. In fact, many judges who have striven to enforce those standards have found themselves reversed. E.g. Scottie-Craft Boat Corp. v. Smith, 336 So. 2d 1150, 1151 (Fla. 1976)("We find that the language of the statute is directory only.").

Nonetheless, as I read the comments in the article, I was drawn to commiseration at times.

Justice Canady described the issues as “pervasive,” and noted that "clients are paying the price." There are perceptions of unfair consequences for people, and a desire to ameliorate those potential impacts.

There are critics. Some seemingly do not like change. Do any of us? Others are more critical it seems of the pace of change ("too much change, too soon"). Furthermore, there are those who doubt that the changes will bring the desired effect in an appropriate and commensurate manner ("no assurances that it is going to be worth it.”). 

Other critics are concerned with affording trial judges discretion. There is the challenge of delivering due process and the reality that all cases do not look the same. We have confronted that in workers' compensation. Certainly, there has been no harm in this system by having standards and monitoring whether judges are performing overall within those statutory parameters. In other words, discretion can still exist while standards and parameters nonetheless coexist.

Possibly, the Court will try an incremental change. The News reported that Justice Muñiz questioned whether there are "one or two things that would give us the most bang for our buck?” This suggests that there may be some support for the "too much" critics, and some inclination to consider making changes in 2023 with an eye toward reevaluation and reconsideration in years to come. However, the Chair reported that alternative had been discussed, but the Workgroup "concluded it couldn't be done."

In a vein the workers' compensation community has repeatedly heard over the decades, there is a sentiment that complaints, issues, and tribulations are not widespread. Some express the belief that there are only "few unethical attorneys or judges that can’t control their dockets.” And, perhaps that is where the lament of sanctions is focused. If there were more frequent and notable consequences for the "few," would there be a need for stricter rules and definitions for the many?

Time will tell where the Court proceeds with this effort. It is intriguing to watch, and the reactions and recommendations are informative and thought-provoking. Will this effort drive a larger conversation about the operation of courts, justice, and the "regular people?"