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Court OKs complex litigation rule.

The Supreme Court has adopted a rule of civil procedure specifically designed to govern the case management of complex civil litigation.

The new Rule 1.201 defines "complex litigation" and identifies the criteria to be considered by trial courts in deciding whether a case merits handling as complex. It also establishes the procedures for raising and deciding the issue.

"We have concluded that, although there are other possible solutions to the problem of management of complex civil cases, the adoption of a specific rule of case management for use in cases that require more judicial labor should promote, not frustrate, the efficient and timely disposition of those cases," Justice Barbara Pariente wrote for a divided 4-3 court in In Re: Amendments to The Florida Rules of Civil Procedure--Management of Cases Involving Complex Litigation, case no. SC08 1141.

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The new rule, set to become effective January 1, 2010, also specifically excludes family law cases from the application of the new rule.

The three dissenting justices sided with the Bar's Rules of Civil Procedure Committee, which unanimously opposed the complex litigation rule, saying it would "micromanage cases" and the goals the rule seeks to accomplish can be found, for the most part, in existing rules. A minority of the task force-- led by First District Court of Appeal Judge Peter Webster--also opposed the rule saying the creation of complex litigation divisions has the potential of "skimming the cream from the top of our available judicial labor pool" and could create the "impression that some litigants are getting more justice from the system than are others."

The task force--chaired by former Judge Tom Bateman of Tallahassee-- took 18 months to develop its recommendations, which are based on case management systems already in practice. The new rule defines what constitutes a complex case, provides for procedural steps that must be followed once the case is filed, and gives judges greater control over their dockets.

Justice Pariente noted the task force rejected a "laundry list" approach of identifying case types that would qualify as complex, in favor of a more flexible approach. She said the rule is tailored specifically to allow the parties and trial courts to identify early in the litigation process those cases needing proactive judicial involvement, the early setting of a trial date, and a specific schedule to which the parties must adhere for the completion of pretrial tasks.

"The goal is to encourage trial courts to manage their dockets and, with regard to cases designated as complex, provide for uniform case management statewide so as to prevent the situation in which cases requiring more judicial labor create a docketing 'logjam,'" Pariente said. "It is hoped that the extra judicial labor required on the front end of the process will be more than made up for by the conservation of judicial labor over the life of the case, resulting in economies of time and money for the courts and the litigants."

Pariente said some of the most significant aspects of the rule include the provision for an initial case management conference, at which a definite trial date is to be set within 24 months, and a requirement that lead trial counsel and a client representative attend.

"The early setting of a definite trial date was deemed to be a key case management technique to avoid cases languishing on dockets for years," Pariente said.

Before the initial case management conference, the rule provides for a mandatory meeting of counsel for all parties to discuss the issues listed in the rule and prepare a joint statement to be submitted to the court within 14 days of the scheduled conference. The rule requires the court, following the case management conference, to issue a case management order establishing certain pretrial deadlines.

The rule also provides for a final case management conference at least 90 days prior to the previously established trial date, preceded by another meeting of all counsel to discuss and prepare a case status report prior to the conference.

The court added a provision to subdivision (a) of rule 1.201 that allows the parties to stipulate to a case's complexity.

"The provision will encourage use of the rule in all appropriate circumstances where all the parties agree to be governed by the provisions of the rule," Pariente said.

The court also modified subdivision (a) to allow the parties to file a motion to designate an action as complex prior to service on, or the filing of an answer, by every defendant "subject to a showing to the court why service has not been made on all defendants."

"This modification addresses the concern that the inability of the plaintiff to serve all parties or the voluntary nonappearance of one or more parties after service has been made should not foreclose designation of complexity in otherwise appropriate cases," Pariente said.

The court also added language to clarify that pro se parties are to be included in any meetings contemplated by the rule.

The court added a provision to subdivision (d) clarifying that a party is not precluded from calling impeachment or rebuttal witnesses not identified in the case status report if the need for their testimony could not have been reasonably foreseen at the time the case status report was prepared.

The court deleted the court commentary proposed by the task force that encourages the "use of general magistrates, special masters, mediators, arbitrators, or other neutrals" who can often "assist the parties and the trial judge with resolving time-consuming disputes" and "help expedite the adjudication of contentious discovery issues."

"We certainly agree with the task force's comment about the role of neutral individuals who can assist the court in the resolution of discovery disputes," Pariente said. "However, we do not deem it appropriate to include this type of commentary as that of the court as an addendum to the adoption of this rule."

The court also approved form 1.999 (Order Designating a Case Complex), which is to be utilized by circuit courts when designating a complex case, and directs the clerks of court to report to the Office of the State Courts Administrator, along with their Quarterly Pending Caseload Reports, the number of cases designated as complex during the quarter and identifying such cases by case style, number, and court division, beginning with the quarter ending on December 31, 2009.

"The use of this form will be critical in keeping track of the number of complex cases pending and tracking their status in the trial courts," Pariente said. "However, we note that without a uniform statewide judicial case management system, the courts will continue to be hampered in their ability to manage their cases in a meaningful way."

Joining Pariente in the majority were Justices Fred Lewis, Jorge Labarga, and James Perry. The dissenters included Justice Ricky Polston, Chief Justice Peggy Quince, and Justice Charles Canady.

Mark D. Killian

Managing Editor
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Author:Killian, Mark D.
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Jun 15, 2009
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