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Civil jury trials.

The federal and Florida constitutions set out the right of access through the courts to redress grievances, and the redress realized is generally left to another right: "trial by jury of all issues triable as of right by jury." However, it has been my observance that the system as presently functioning does not meet these goals.

To redress a purported need to lessen the work load on judges and the courts, the Legislature and the courts over recent years formulated "rules and procedures" that too often throw roadblocks and hurdles into that "right of access."

There are several basic issues which largely factor into the lessening of civil jury trials. First and foremost on my "hit list" is [section]768.79, which has a prejudicial, pervasive, and debilitating effect to getting a case before a jury. The statute has as its primary objective the sidetracking and outright preclusion of litigation going forward to a jury trial. That was the objective of the statute when created and the actuality of the result. Fairness and justice had nothing to do with its creation. The statute was a child of Florida's tort reform acts. In reality it was the creature of insurance companies, prepared by their attorneys and promoted through the Legislature by lobbyists for that industry.

The result was to place a "Sword of Damocles" over a plaintiff's cause of action. It was argued that this statute was also needed to alleviate a purported heavy trial load on judges and the judicial system, and would do so by "encouraging" meaningful settlement discussions by placing penalties on both plaintiffs and defendants for failure to heed the ramifications of a failure to settle. But, in actual operation, the so-called penalties have never had the intended effect on defendants represented by insurance companies.

I know from first-hand experience that insurers have no concern for the "penalty" aspects of the statute. This is especially so if that exposure is within the policy limits, and is so even where a bad faith exposure may be present in an excess limits case, for they will simply pay it.

I would wager that in any survey of trial attorneys representing plaintiffs that few offers of settlement by the plaintiff were accepted, even where it was a compromise of the case's real value to gain some settlement for a client in need of an early recovery of his damages.

On the other hand, the only probable result of a jury award greater than a plaintiff's offer is that of the poor adjuster or trial attorney reprimanded for an inability to foresee the future and guarantee a desired trial result. In the many pretrial conferences I have had with insurance representatives, I recall no instance of any concern for not accepting a plaintiff's statutory offer of settlement. But plaintiffs and their attorneys do not have the luxury of such disregarded risk. The statute accomplishes settlement only by coercion and threat. Not only does it not promote justice, it impairs it.

Too often the handmaiden of [section]768.79 is that of mandatory pretrial mediation. At call of a trial calendar, judges always inquire if the case has had mediation, and if not, there will be no trial. This limitation presented by the statute and the mediation rule to a party's right to a trial by jury came about in conjunction with the objective of cutting back on jury trials. In operative practice, at a mediation hearing the mandate too often functions as a means of outright threat and intimidation by insurance company reps who always stress the dire result that can come to a plaintiff if a jury does not return a verdict substantially greater than their settlement offer.

My solution: remove F.S. [section]768.79 from the books, make mediations voluntary, and provide for cheap, fast-track appeals of summary judgments without the need of a costly transcript of the hearing.

Millard C. Glancy

Coral Springs
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Title Annotation:Letters
Author:Glancy, Millard C.
Publication:Florida Bar News
Article Type:Letter to the editor
Date:Mar 1, 2010
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