Throughout the course of a thirty-plus-year career there was at least one thing that lawyers and clients could count on and that is, that litigation would be time-consuming. It was not unheard for a case to plod on, endlessly grinding through the court system for more than ten years. This has been one reason why, historically, litigation has been a less than attractive option for many business owners and individuals.
The ten year old case most often caused costs to multiply, clients and judges to become frustrated and unhappy and, in the end, justice to be denied since, during the pendency of a lawsuit that lasts that long, witnesses tend to disappear or die and, perhaps not surprisingly, key documents and other evidence can no longer be found. Now, someone, or perhaps some committee affiliated with the Florida Supreme Court, decided that it was a bad idea to allow cases to fester for that long. So, the Florida Supreme Court decided it was time to clamp down on the Bar and the Judiciary to make things move faster. Like everything else in life, this idea has both positives and negatives.
Let’s review how these changes can affect, you, the client, in a positive way should you choose to pursue litigation as either a business or personal objective in the Florida state courts.
- Cases are likely to get resolved faster. The age of the ten-year-old case has all but been abolished. Yes, there are still cases that you can find in the court system that are that old. Nonetheless, when a lawyer advocating in a ten-year-old case appears before a Florida judge now, you can almost see the look on the Judge’s face (whether it’s in person or by zoom) – “are you kidding me?” There are a lot of things that a lawyer may want a judge to say to them but “are you kidding me” is not one of them.
- Improved Efficiency and Predictability. Florida state court lawsuits now have scheduled events and deadlines decreed by Court order. There are deadlines for the close of discovery, for dispositive motions, and for trial, among other things. This should provide business owners and individuals with a better sense of the progress of a case in addition to gaining an understanding as to how much it is likely to cost.
- Cooperation and Reducing Gamesmanship. The Florida courts now require lawyers to talk to one another. The old “I’ll see you in Court” mentality is slowly being rolled
back. Now, the new mantra is: “I will see you at the meet and confer” because the Judge and the Florida Supreme Court are literally forcing lawyers to resolve discovery and other minor disputes directly with opposing counsel without involving the court. If it works, and it does not always work, this can be a time saver and a cost saver. - Case Schedules Tailored to Complexity. The question of what makes a case “complex” is always a thorny one for Florida lawyers. Ask two lawyers this question and you will often get two different answers. And, while the Courts do not always get this right, by and large, designating a case as “complex” will ensure that the Court will be more involved in supervising it. The Miami-Dade Court system has a division, staffed by two of its best judges, known as the “Complex Business Division.” An assignment to that division is both a blessing and a curse depending on your objectives. This is because a lawyer’s conduct in a case is more closely scrutinized, deadlines are more carefully observed, and the complex business division rules, in some cases, bear a great resemblance to the Federal Rules of Civil Procedure which requires strict adherence to deadlines.
And, now, for the downsides.
- Increased Workload and time pressure for lawyers. Yes, we must work hard, faster and more efficiently to meet court deadlines. Compliance with the rules is going to require more attention from both counsel and their clients.
- Motion for Continuance Denied. The list of excuses that lawyers have historically proffered for failing to meet deadlines or for not being ready for trial has evaporated under the new rules. Just attend any calendar call and listen to the Judge. If you want a continuance, you better have a real medical emergency or, G-d forbid, a death in the family. The Courts are no longer listening to the time-worn litany of excuses that lawyers have historically invoked for not being ready.
- The Courts Sometimes Cannot Keep up with the Schedule. The new system sometimes results in unfairness because the court system simply cannot keep pace. For example, we have cases that are set for trial, but the court does not have availability to hear preliminary motions or discovery motions. This is not necessarily fair, but it does require some flexibility by the Judiciary.
The above is just a random sample of how the changes will affect, and have affected, Florida state court litigation. The message is that the old days of the ten-year-old case grinding through the court system without anyone watching is gone. Now, every case is being scrutinized under the watchful eye of the judge. The ability of lawyers and their clients to adjust to the changing landscape is one of the keys to success in this new reality.