FL S. Ct. Improved Resolution Workgroup Rules OA

The Supreme Court of Florida heard oral argument today on a package of rules proposed by their appointed Workgroup on Improved Resolution of Civil Cases that might forever impact our state court system in a major way. These amendments are proposed as a paradigm shift to change the legal community and the perceived problems such as that current rules engender delay culture and firmer deadlines move cases. Firm trial dates, dates for discovery cutoffs and dispositive motions that are enforced by active case management can promote efficient resolution of cases according to the judges creating these proposed rules. Hearing time is a precious commodity that is often wasted with cancellation as are trial weeks according to Chief Judge Morris of the 2d DCA who reports that a mere 0.04% of cases end up in trial. Some judges appearing advocated the integration of county clerks' computer systems and the judicial case systems to alleviate duplication and promote standardization such as PACER in the federal system. The Civil Rules Committee chair said the adoption of the federal summary judgment rule brought the case law relied on in that system for clarity, but cautioned that the wide swath of changes to aggressive case management would shock the system and create growing pains with litigation on those changes. Justice Canady, who oversaw the Covid-19 crisis in the courts, said serving the litigants was the reason emergency procedures were ordered and now the court wants to see how to institutionalize those changes that proved successful in getting cases at issue during the pandemic. Justice Polston expressed concern with cases that are falling far behind or that just plain languish. He was also concerned parties should be exempt from the case management rubric in cases that are subject to Arbitration. Justice Labarga said when he was a trial judge, lawyers did not adhere to deadlines, especially with experts. Justice Muniz questioned why not implement proportionality in discovery like federal court and was told by a sophisticated commenter that our state system was just not ready to address that. The bar's Business Law Section is in favor of proportionality and also agreed with imposing track rules on cases except for presumptive streamlining of bench trials. The Appellate Rules Committee did not like substantive standards of review found in a few of these procedural rules. Probate practitioners were concerned about the disparity in dockets around the state and increased judicial decisionmaking versus routine uncontested proceedings. Critics of the sweeping package took issue with the lack of resources to implement these changes and technical irreconcilable differences between some of the rules. Others feared increased sanctions and less continuances. Judge Bailey responded on behalf of her workgroup arguing that because civil justice costs too much and takes too long, the public has lost faith and these case management changes are needed. While there were concerns over standardizing hearing procedures, everyone agreed an educational effort is needed in conjunction with the rollout of these rules. See more here-- https://www.youtube.com/watch?v=Hq8gHr2FQP8 and Case No. SC22-122 https://bit.ly/3UGns4K

Mediation Week 2021

October 17-23 is officially Mediation Week in Florida and elsewhere, marking the importance of dispute resolution as an effective substitute to litigation and the fact that mediation has continued virtually during the pandemic, allowing parties to resolve disputes without resorting to litigation in a system of very backed-up court dockets. Alternative Dispute Resolution (ADR) has been used by Florida courts for more than 30 years. I have been mediating lawsuits for over 20 years now and this past year and a half was the most seismic shift in our profession and the legal profession in general. Online Dispute Resolution (ODR) will now continue as an option following the pandemic through confidential sessions conducted remotely with widely available commerical off-the-shelf technology. More than 5,500 mediators are currently certified by the Florida Dispute Resolution Center. These professionals meet specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation. In most cases, discerning counsel and their client parties select the mediator. However, a mediator may be appointed by the court when litigants are unable to select their own. Mediation week brings annual focus on ADR work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. See more here-- https://bit.ly/3AU5XUt

FL Courts Largely Remain Closed

Even with a falling case trend of recent Covid-19 statistics, the courts around the state are in phased reopening status, a daily snapshot of which can be found at the link at the end of this update. The Supreme Court of Florida's evolving Emergency Procedures orders have focused on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." This is good news for parties and their counsel who can't get to a jury just yet. Remember, some 98% of cases settle before trial. A few circuits have engaged in the limited pilot program of remote trials with mixed reviews. At present, all courts remain at either Phase 1 or 2 in this continuing pandemic. As a reminder, Phase 1 means in -person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare. Phase 2 encompasses limited in-person contact is authorized for certain purposes and/or requires use of protective measures. Phase 3 states in-person contact is more broadly authorized and protective measures are relaxed. Finally, one day (hopefully next year) we will get to Phase 4 when COVID-19 no longer presents a significant risk to public health and safety. In the meantime, call your mediator and get those pending matters settled! See more here in this updated color-coded guide-- Court Phased Opening Status

Revised Guidelines For FL Phased Court Operations

 

This week, the Supreme Court of Florida amended guidelines for the four-phased timeline that will govern the return to normal statewide court operations. The four phases were established in prior orders issued since the state courts began pandemic operations in March, all based on recommendations of a COVID-19 Workgroup and general public health guidelines. The Workgroup’s mission is to find ways for courts to operate as fully as possible during each phase of the pandemic. The Workgroup is chaired by Ninth Circuit Judge Lisa Munyon from Orlando. The amendments pertain to the so-called Comprehensive Measures and the Public Health & Safety Precautions that provide standards for pandemic operations in the state courts. They make the following major changes: 1) Provide updated criteria for the transition to different phases 2) Require a human resources policy at each court to address potential COVID-19 exposure of court employees and judges 3) Update health screening criteria for entry into a courthouse  4) Provide updated guidance for courts in monitoring local conditions and public health data when expanding in-person proceedings and 5) Provide a methodology to determine deteriorating local health conditions that would require an amendment to a local operational plan or a return to an earlier phase. Florida’s courts have been operating under emergency guidelines since March when the court suspended jury trials and took other actions restricting potential disease spreading activities in the state courts. Some limited jury trials have resumed in parts of the state using remote technology for all or part of the proceedings (refer to my prior post) See more in revision 6 of the COVID-19 admin order here-- https://tinyurl.com/yywqmeb6

New Admin Order: Orange-Osceola Courts Opening

Please take note this morning that everyone entering the courthouses in Orlando and Kissimmee will be required to wear a mask and undergo a health screening with a temperature check before entering the building. Masks shall be worn in all public areas of the court facility, including courtrooms or hearing rooms, unless the Judge or Judicial officer authorizes its removal. Per the Administrative Order by Chief Judge Myers, all persons will be checked for their body temperature using an infrared or other non-contact temperature device before entrance to a court facility. Any person who registers a body temperature of 100.4 degrees or greater shall not be permitted to enter the court facility. In the event an individual refuses to undergo a health screening or temperature check, or refuses to wear a mask for entrance to the court facility, the security personnel or other person performing the health/temperature checks shall attempt to obtain and record the same information described above. Once the information is obtained, the information shall be provided to the appropriate Judge, Judicial Officer, Clerk, or other court facility occupant so that alternate arrangements can be made for the person, such as a remote appearance, rescheduling a hearing, or other measures, as necessary. In regard to civil proceedings, according to last week's judicial town hall meeting, remote hearings are still a priority and dispute resolution via electronic means is still encouraged during COVID-19. UPDATE: Court returned to Phase 1 restrictions due to spiking Coronavirus numbers June 23, 2020. See full order here- https://bit.ly/2yPCZLA

COVID-19 Court Continuity

The Supreme Court of Florida just released an Administrative Order creating a Florida Court Continuity Workgroup, consisting of a seventeen member task force meant to find ways for the courts to operate as fully as possible during each stage of the Coronavirus pandemic. Chief Justice Charles Canady selected our very own Ninth Circuit Judge Lisa Munyon to chair this workgroup. I worked alongside her as a General Civil Magistrate, hearing matters in Orange County's Circuit-Civil Division Business Court cases. She is a very effective judge and also leads the statewide Florida Courts Technology Commission that explores traditional and innovative methods of utilizing compatible technology infrastructures to improve case management and efficiencies in the judicial branch. As chair of the new workgroup, she will guide esteemed law professionals from across the state in their mission to examine the current status of court proceedings, propose methods and rule changes, find solutions for legal issues, and in recommending the priority of proceedings to resume. Specific to Alternative Dispute Resolution (ADR), the members will identify and propose solutions for implementation challenges and cost issues associated with the use of remote technology. The workgroup will also consult with other stakeholders and public health experts to determine the best way to implement a plan for a staged return to full court operations. See full order AOSC20-208 here-- https://bit.ly/2Vs0jaM

Order Curtails Courts in Florida, So Mediate!

The Chief Justice of the Supreme Court of Florida today ordered most in person legal proceedings in the state courts be suspended for a minimum of two weeks due to the COVID-19 virus. The order takes effect Monday. Local judges will use remote electronic means of conducting legal proceedings whenever possible. The order will be extended or modified as needed in the future and is subject to existing constitutional requirements. Under Florida's Constitution, the Chief Justice is the chief administrative officer of the state court system and can issue orders with statewide effect. This is the first time a limit on face-to-face proceedings has been ordered since Florida’s state courts system was unified by a constitutional amendment approved by voters in 1972. The court found these measures are needed because a public health emergency exists, requiring social distancing to reduce transmission of the Coronavirus which is now a pandemic. The order is designed to slow the spread of infectious disease by eliminating gatherings of the public such as jury duty and trials. However, mediation remains available to litigants in the absence of court proceedings and can be conducted by remote attendance or online dispute resolution (ODR), which my firm offers. We expect the business of dispute resolution will go on with the help of technology, allowing attendees the opportunity to participate without spreading infection. See more on our ODR options here-- https://tinyurl.com/twd4nl4 and the court's full order here-- https://tinyurl.com/wrt7hug

ADR Part of Long-Range Plan for FL Courts

A long-range strategic plan for Florida's Judicial Branch from 2016 to 2021 is available, published by the Judicial Management Council. It finds that Florida’s people depend on their court system to make fair, reliable, and prompt case decisions. The administration of justice requires deliberate attention to each case, a well-defined process to minimize delay, and the appropriate use of limited resources. It emphasizes the importance of our judicial branch in implementing practices which utilize resources effectively, efficiently, and in an accountable manner while continuing its commitment to fairness and impartiality. It specifically aims to promote the use of innovative and effective problem-solving courts and alternative dispute resolution (ADR) processes, such as mediation and arbitration. The report finds Florida’s courts are committed to equal access to justice for all. However, litigation costs, communication barriers, lack of information, complexity, biases, and physical obstructions can create difficulties for those seeking to access the courts to obtain relief. Therefore, it concludes the judicial branch must strive to identify and remove real or perceived barriers to better provide meaningful access to the courts. The judicial branch’s legal authority is a grant by the people, and public trust and confidence in the judicial branch is at the heart of maintaining a democratic society. Promoting public trust and confidence in the courts, it says, enhances the effectiveness of court actions, strengthens judicial impartiality, and improves the ability of courts to fulfill their mission. Finally, it resolves that improved communication, collaboration, and education efforts will better inform the public about the judicial branch’s role, mission, and vision. See more in report here-- http://bit.ly/2fE4ITI