New MDFL Local Rules Take Effect 2/1/21

After careful deliberation and based on the Lawyer Advisory Committee's report and the public comments, the Board of Judges recently approved revisions to the Middle District of Florida's Local Rules. The revised Local Rules become effective February 1, 2021. Stated goals for this revision are to: modernize and simplify; accommodate changes in national and local practice; eliminate overlap with federal rules and statutes; eliminate references to specific federal rules and statutes; address re-occurring complaints and issues; and accord with best practices. In regard to mediation, Chapter Four of the new rules specifies that:  To refer an action or claim to mediation, the judge must enter an order that: (a) designates the mediator or directs the parties to select a mediator and to notify the judge of the selection;(b ) establishes a mediation deadline; (c) requires a lawyer to confirm a mediation date agreeable to the mediator and the parties and to notify the judge of the date; (d) requires the attendance of lead counsel, the parties or a party’s surrogate satisfactory to the mediator, and any necessary insurance carrier representative;(e) notifies the parties that unexcused absence or departure from mediation is sanctionable; (f) requires the mediator to report within seven days after mediation the result of the mediation and whether all required persons attended; and (g) directs that the substance of the mediation is confidential and that no party, lawyer, or other participant is bound by, may record, or without the judge’s approval may disclose any event, including any statement confirming or denying a fact — except settlement — that occurs during the mediation. See more here- https://bit.ly/2YctX4u

Federal Judge Orders Investigation of Arbitral Awards

Interestingly, a federal judge has ordered an investigation into why a municipality consistently loses arbitration cases with officers who are appealing discipline. U.S. District Judge Thelton Henderson opined that an arbitrator's recent decision overturning the termination of a the City of Oakland police officer videotaped tossing a tear gas grenade into a crowd of Occupy Oakland protesters struck at the heart of a reform he oversees. The judge maintains reversal of appropriate discipline at arbitration undermines the very objectives of a court-sanctioned reform effort following a police brutality scandal a decade ago. Reportedly, of the last fifteen arbitration cases by police officers challenging punishments, discipline was revoked in seven cases and reduced in five others, leaving only three wins for the city. Judge Henderson's unusual order apparently gives wide latitude to study every facet of the police department's investigation of officers and how the City Attorney's office prepares arbitration cases. The investigation will include a review into whether the city is getting adequate legal representation for arbitration hearings, whether it is selecting qualified expert witnesses and whether it should change the process for selecting arbitrators. It will also investigate the police department's discipline process, which officers have claimed is biased against them. See story here-- http://bit.ly/1pxuBTo

E-Neutrals and FL ESI rules

I spent the last couple of days at the national annual conference of the Association of Certified E-Discovery Specialists (ACEDS). There were many vendors, attorneys and even court personnel attending. Of particular interest, was a pilot program developed by Clerk of the U.S. District Court for the Western District of Pennsylvania, Robert Barth. That court has identified special masters and E-neutrals as fulfilling the need to effectively address issues presented by the preservation, collection and production of relevant Electronically Stored Information (ESI) during the litigation process. The parties in those cases reportedly benefit from the appointment of Electronic Discovery Special Masters (EDSMs) in appropriate cases. Any findings of fact or conclusions of law reached by the EDSM will be presented to the court as a report and recommendation, to which the parties have the opportunity to object, prior to a de novo review by the court (see details at - http://www.pawd.uscourts.gov/Pages/ediscovorey.htm). Florida's draft rules do include a case management topic of optional appointment of special magistrates in the event such issues need to be referred. This was discussed during an ACEDS panel I served on with my successor on the Florida Civil Rules Committee, Kevin Johnson. We also spoke on the likelihood of a decision from the Supreme Court of Florida concerning the proposed amendments to the Florida Rules of Civil Procedure and any time frame for implementation. Given the largely friendly reception during oral argument, it appears adoption of the language is imminent, but the forthcoming opinion could delay the effective date of the rules, given the Court's concern for educating the bench and bar.

Mandatory Federal ADR Program Reduces Case Pendency and Encourages Early Settlement

The U.S. District Court for the Western District of Pennsylvania was once in the bottom of district courts for length of time to resolve civil cases and the amount of time to decide motions. However, that court now places in the top five percent due to the implementation of mandatory alternative dispute resolution (ADR). While the number of civil trials in the has not significantly decreased since mandatory ADR was initiated, what has decreased is time between filing and trial-- now less than a year. The program is judge directed, as opposed to being run out of the clerk's office or a separate staff. Under the procedure, lawyers have a duty to "meet and confer" prior to the initial case-management conference and to choose the form of ADR and a neutral. Litigants and lawyers are encouraged to reasonable, thoughtful and analytical in assessing cases rather than just digging into positions. According to the article below by Karen Engro, designer of the ADR program that was implemented there, cases are settling much earlier, before the deluge of discovery and motion practice. By requiring litigants to enter ADR prior to substantial discovery and the filing of summary judgments motions, the court has shifted the settlement time line substantially earlier in the litigation process. Engro reports mandatory ADR program is changing the settlement culture from settling on the courthouse steps to early resolution. More here, including statistics: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202524627002&A_changing_paradigm&slreturn=1