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The case management conference: tune-up needed? (Trial Lawyers Forum).

The case management conference (CMC) is described in Rule 1.200(a) of the Florida Rules of Civil Procedure. (1) The CMC is used in criminal procedure as well, although there is no rule in the Florida Rules of Criminal Procedure referencing the CMC. (2) The Florida Family Law Rules of Procedure provide specifically for the CMC. (3) On the federal side, Rule 16 of the Federal Rules of Civil Procedure provides for pretrial conferences. (4) The primary focus of this article, however, is on Fla. R. Civ. P. 1.200.

Rule 1.200(a) can be used at the initiative of the court or the attorneys. The CMC can be convened at any time after responsive pleadings or motions are due.

At the CMC, the court may:

1) Schedule or reschedule the service of motions, pleadings, and other papers;

2) Set or reset the time of trials, subject to rule 1.440(c) [Setting for Trial];

3) Coordinate the progress of the action if complex litigation factors are present;

4) Limit, schedule, order, or expedite discovery;

5) Schedule disclosure of expert witnesses and the discovery of facts known and the opinions held by such experts;

6) Schedule or hear motions in limine;

7) Pursue the possibilities of settlement;

8) Require filing of preliminary stipulations if the issues can be narrowed;

9) Consider referring issues to a master for findings of fact; and

10) Schedule other conferences or determine other matters that may aid in the disposition of the action.

This list of powers gives flexibility to the court and the parties in moving the case towards settlement or trial.

One example of how the CMC should have been used appears in Wrona v. Wrona, 592 So. 2d 694 (Fla. 2d DCA 1991). In this case, a former husband appealed a final divorce judgment. Judge Altenbernd, frustrated by the wasteful and costly litigation, noted that the drain on marital assets resulting from protracted litigation should have been addressed at a CMC early on in the litigation, especially in a situation where minor children need the limited marital assets. (5)

The CMC does sometimes need to be used to spur action. In Cristancho v. Village Homes in Bonaventure Homeowners Association, Inc., 580 So. 2d 658 (Fla. 4th DCA 1991), the appellate court reversed a dismissal for failure to prosecute under Fla. R. Civ. P. 1.420(e). There had been no discovery initiated between December 1985 and May 4, 1990. A fourth amended complaint had been filed on April 7, 1989, and the defendant filed motions to dismiss within several weeks. The plaintiff did nothing until May 4, 1990, at which time a notice of deposition and request to produce were filed--a few days before the one-year time limit expired. In a concurring opinion, Judge Farmer reluctantly agreed that Rule 1.420(e) permitted such neglect, but speculated that the trial judge could have used the CMC to get the case moving. (6)

In Moossun v. Orlando Regional Health Care, 760 So. 2d 193 (Fla. 5th DCA 2000), an appellate decision currently under review by the Florida Supreme Court, the central issue to be decided was whether an order setting a CMC constituted record activity for purposes of Rule 1.420(e). The court affirmed the trial decision to treat the case management order as insufficient to establish record activity when a CMC was being set, which is a step intended to move the case closer to settlement or trial. (7)

Attorneys who establish a pattern of ignoring case management conferences and otherwise not cooperating with court deadlines risk a dismissal of claims and a default judgment. (8)

In some litigation settings, such as family law (9) or probate litigation, the court may take a more proactive role in the use of the CMC. Attorneys and the court may also be more predisposed to employ the CMC when there are numerous parties and/or complex issues. For example, Bush v. Holmes, 767 So. 2d 668 (Fla. 1st DCA 2000), involved the appeal of a determination by the trial court that provisions of Florida's Opportunity Scholarship Program were unconstitutional. Many parties were involved as well as a number of important issues. The CMC was used to identify issues that required the presentation of evidence and the issues that dealt with the statute's constitutionality. (10)

When the CMC is used by the attorneys to select times for mediation or trial, a time frame is created within which the parties must prepare themselves and the court for the upcoming proceedings. Attorneys may be presented by the court with a choice of trial terms. Once a trial term is selected, the attorneys know when the witness list must be prepared, when discovery is to be completed, when the mediation is to take place, and when the pretrial conference is to occur. A list of mediators may even be provided to the attorneys in anticipation of mediation.

Rule 1.200(a)(3) gives the courts authority to "coordinate the progress of the action" and the power to undertake such coordination "if complex litigation factors exist." This subsection appears to put limitations on how proactive courts can be in moving cases through the judicial system, although judges may have differing views as to what is and is not complex.

The common law adversarial tradition and the limitations on judicial staff constrain judicial micromanagement. The legal system depends heavily on the attorneys fulfilling their roles both as zealous advocates and as officers of the court. As such, the attorneys have an obligation to move the cases along.

In fulfilling its role under the CMC, courts look in part to the Florida Rules of Judicial Administration. Fla. R. Jud. Admin. 2.085(b) provides that the "trial judge shall take charge of all cases at an early stage in the litigation and shall control the progress of the case thereafter until the case is determined." Rule 2.085(d) provides presumptively reasonable time standards for completion of cases, (11) but does not provide time standards for pretrial procedure.

The case management order provides a timetable for the court and the parties to follow. The case management order is not cast in concrete. If the parties and court so wish, the order can be amended to reflect new developments in the preparation of the case for adjudication.

Courts most likely will have exposure to the case well before any CMC or pretrial conference. Motions to dismiss, discovery disputes, and a medley of other motions may have to be decided by the court prior to having a CMC establishing the groundwork for the trial itself. The initial motions practice and pretrial sparring gives the court an opportunity to gain some familiarity with the case even though the court's role is more reactive than proactive.

The timing of a CMC may be important from the standpoint of effectiveness. If notice is given for a CMC at the beginning of the litigation, the usefulness of the conference may be quite limited. At the early stages of the lawsuit, key witnesses may not yet have been deposed, expert witnesses are not identified, and even an understanding of the facts may not be complete. On the other hand, a CMC might be scheduled early on in the litigation if the issues are complex and/or if the parties are numerous.

Rule 1.200(c) provides potent ammunition to compel parties to attend a scheduled CMC. Failure to attend a CMC can be punished by dismissal of the action, striking of the pleadings, limiting of proof or of witnesses, or "any other appropriate action." However, the failure of a pro se litigant to attend a CMC, when the litigant had appeared at prior hearings and had filed motions and other papers in the case, is not a basis for dismissal of the case. (12) Even if counsel misses a CMC, there should be no dismissal without prejudice unless the record shows that the failure to appear was a willful or flagrant disregard of the court's authority. (13) For example, where the parties failed to comply with a trial court's instruction to schedule a hearing within 10 days, dismissal of the case was reversible error. (14)

In Russell v. A. G. Edwards, 779 So. 2d 452 (Fla. 2d DCA 2000), the trial court entered final judgment against the plaintiff as a sanction against plaintiff and her counsel for not attending two CMCs. The appellate court reversed, giving as one reason that although the failure of the plaintiff's attorney to attend the two CMCs may have been deliberate and contumacious, the attorney's actions should not lead to a denial of the plaintiff's claims where she had no obligation to attend the CMCs. (15) Instead, the appellate court suggested that a fine, public reprimand, or contempt order against the attorney might be more appropriate. (16)

Harsher measures should only be used where behavior is egregious. Overly aggressive judicial action can backfire. In re Vitale (17) is instructive as a case where a premature dismissal and failure to vacate the order of dismissal led to a public reprimand of the trial judge by the Florida Supreme Court. (18)

The Florida Rules of Civil Procedure and the Rules of Judicial Administration do not impose specific guidelines on judges with regard to the CMC. The use of the CMC thereby becomes a tool that judges can adapt and use to suit their own particular judicial styles as well as the peculiarities of the local court systems in which the judges operate.

There are clearly situations where the CMC should be used aggressively. An example might be when court administration is unduly slowed because of wrangling between the parties that cannot be effectively resolved by hearings on specific motions. Courts should then be on the lookout to distinguish between zealous representation and obstructionist tactics. An occasional status conference could also help if scheduling or other problems exist.

A CMC may be effective where multiple parties are trying in vain to coordinate hearings, wasting time for both the court and the parties. A CMC would be a solution in that all the parties would be brought together and hopefully work out timing issues under the court's eye. Sometimes the CMC can act as a catalyst for the parties to work out an early settlement. Counsel for the parties may have had few face-to-face discussions with each other since the beginning of the litigation, and the CMC can provide an opportunity to work out differences. The court also benefits because the judicial workload is thereby lightened somewhat.

Does the CMC need "fixing"? Florida rules are flexible, which is needed to deal with state court dockets and the procedural requirements of even "routine" cases. The CMC has an important role to play in judicial administration, yet the case law regarding dismissals for failure of counsel and parties to cooperate points to a failure of the CMC to be used with full effectiveness. The cases reflect frustration of the trial judges at the lack of cooperation (deliberate or otherwise) of counsel and parties that at times occurs and which can build up to a point where dismissal of the case becomes an alluring option to the judge. Since there is so much flexibility in the CMC guidelines, appellate courts reviewing the dismissals are especially conscious of due process issues and are reluctant to cut off access to the court system.

The state judicial system in Florida has chosen thus far not to adopt the more rigid procedural rules for case management that exist in the Federal Rules of Civil Procedure. Since dismissals with or without prejudice for failure to comply with CMC orders are frequently reversed, a supplemental approach might be used more often to improve compliance with the intent and purpose of the CMC. The court in Russell v.A.G. Edwards urged sanctioning the attorney rather than the client for procedural noncompliance. (19)

The responsibility for effective use of the CMC lies both with counsel and with the courts. The CMC procedure does not necessarily need fixing, but it may need to be used more aggressively in certain circumstances. By keeping the parties to a "game plan" established by a CMC, the courts can better control the direction of the case than relying on putting out the brush fires of motion practice.

(1) The Court Commentary to the Florida Rules of Civil Procedure states that subdivision (a) of Rule 1.200 was created in 1984 "in an effort to give the court more control over the progress of the action." The Court Commentary goes on to say: "All of the matters that the court can do under the case management conference can be done at the present time under other rules or because of the court's authority otherwise. The new subdivision merely emphasizes the court's authority and arranges an orderly method for the exercise of that authority."

(2) See Bell v. Florida, 2001 Fla. Lexis 878 (April 26, 2001) (unpublished opinion) (Case management conference ordered to set date for filing and adjudication of amended FLA. R. CRIM. P. 3.850 motion (motion to vacate, set aside, or correct sentence)). A proactive and more regimented use of the CMC in the criminal procedure arena has been advocated by a member of the Florida Supreme Court. Justice Charles Wells, dissenting in Nixon v. Singletary, 758 So. 2d 618, 634-35 (Fla. 2000), cert. denied, 148 L. Ed. 2d 437, 121 S. Ct. 429, 69 U.S.L.W. 3316 (U.S.L.W. 2000), strongly urged that the Florida Supreme Court actively case manage capital cases following direct appeal and to implement quarterly CMC procedures in the trial courts with status reports reviewed by the Supreme Court.

(3) Rule 12.200(a). A CMC may be ordered by the court at any time. A party may request a CMC 30 days after the service of a petition or complaint. Special rules apply to adoption proceedings. Rule 12.200(a)(2).

(4) The district courts have their own rules with respect to CMCs. For example, Rule 3.05 of the Rules of the U.S. District Court for the Middle District of Florida provides very specific requirements and time frames. Cases are divided into three separate tracks, each with its own rules. The Southern District's Rule 16.1A provides also for three tracks: expedited, standard, and complex. The rules for the Northern District, however, make no specific mention of the CMC.

(5) Judge Altenbernd, writing for the court, stated: "This couple has four children that need all the care and education that money can buy. Nevertheless, this couple has spent -- and our system of divorce has permitted them to spend -- roughly 50 percent of their entire savings on a divorce battle over a big stamp collection and a house full of Hummel figurines. [Footnote deleted.] Unless the couple sells their collections to pay their attorneys, it appears that either the attorneys must defer their fees or the parties will ultimately be forced to use virtually all of the equity in their children's homestead to pay for this Pyrrhic victory." 592 So. 2d at 696.

(6) Cristancho, 580 So. 2d at 659.

(7) Moossun, 760 So. 2d at 197. In Toney v. Freeman, 600 So. 2d 1099 (Fla. 1992), the Supreme Court determined that a status order was not to be considered record activity because the order was, in effect, only a status update. The Third and Fourth D.C.A.s have distinguished between a status order (not record activity) and a status conference (record activity) (Charyulu v. Mercy Hospital, Inc., 703 So. 2d 1155 (Fla. 3d D.C.A. 1997), rev. denied, 717 So. 2d 535 (Fla. 1998); and Samuels v. Palm Beach Motor Cars Limited By Simpson, Inc., 618 So. 2d 310 (Fla. 4th D.C.A. 1993), rev. denied, 629 So. 2d 134 (Fla. 1993)). The dissent in Moossun, relying on Toney and the Third and Fourth D.C.A. decisions, presents, in the author's opinion, a more convincing argument.

(8) Kron v. Barker, 536 So. 2d 383 (Fla. 5th D.C.A. 1989) (failure to complete a pretrial stipulation, failure to attend a pretrial CMC, delays in providing answers to interrogatories, and ignoring of two court warnings).

(9) FLA. R. JUD.ADMIN. 2.085(d)(1)(C) provides a trial court time standard of 90 days for uncontested divorces, 180 days for contested divorces, and 14 days for temporary support and enforcement of support hearings. See also Flint v. Fortson, 744 So. 2d 1217, 1219 (Fla. 4th D.C.A. 1999), in which the court noted that time standards and practical experience favored speedy resolution of domestic relations cases.

(10) Bush, 767 So. 2d at 671.

(11) For example, the trial court time standard for civil jury cases is 18 months from filing to final disposition, and 12 months for nonjury cases. Small claims are given a time frame of 95 days.

(12) Lenfesty v. United States Balloon Corp., 699 So. 2d 850 (Fla. 4th D.C.A. 1997). See also Clark v. Sturks, 668 So. 2d 1106, 1107 (Fla. 2d D.C.A. 1996) (failure of pro se plaintiff to attend CMC does not warrant dismissal of action unless court order has a finding of violation that was flagrant, persistent, willful or otherwise aggravated).

(13) Dave's Aluminum Siding, Inc. v. C & M Ventures, 582 So. 2d 147 (Fla. 3d D.C.A. 1991). The parties had filed a written statement in preparation for a CMC. One attorney contended that he had told the trial judge's secretary the day before the CMC that the attorney would not be able to come because of a scheduling conflict, and he requested a telephonic conference, to which opposing counsel did not object. The court was reversed for dismissal of the case without prejudice. See also Drakeford v. Barnett Bank of Tampa, 694 So. 2d 822, 824 (Fla. 2d D.C.A. 1997) (dismissal of complaint with prejudice by trial court reversed because failure to attend CMC did not warrant dismissal, and also, if motion to dismiss had been granted, the dismissal should have been without prejudice); Paris International Records & Filmworks, Inc. v. Rodriguez, 539 So. 2d 5 (Fla. 3d D.C.A. 1989) (failure of defense counsel to appear at CMC does not by itself warrant striking of pleadings and granting affirmative relief to plaintiff, as record does not show willful or flagrant disregard of court authority).

(14) Leonardo v. Grimming, 740 So. 2d 580 (Fla. 4th D.C.A. 1999). In Leonardo, the dismissal without prejudice was tantamount to a dismissal with prejudice because of the statute of limitations.

(15) Russell, 779 So. 2d at 455.

(16) Id. at 455-56.

(17) 630 So. 2d 1065 (Fla. 1994).

(18) The court was advised during a telephonic CMC that a motion to dismiss was pending, but that a settlement could be achieved soon. Judge Vitale told counsel that within 10 days of the CMC order, one or both counsel must advise the court in writing that the case had been settled or notice the motion to dismiss. If not, the court would dismiss the case. The court was notified eight days later that the case had not been settled and that the motion for dismissal had been noticed for hearing 19 days later. Both counsel appeared at the hearing, but were advised that the hearing did not make the calendar. In fact, the court had proceeded to issue a final order of dismissal several days earlier. 630 So. 2d at 1066. See underlying case of Gold v. Wohl, 617 So. 2d 409 (Fla. 4th D.C.A. 1993).

(19) Russell, 779 So. 2d at 455-56.

Joseph Bothwell McFarland is a civil litigation and immigration attorney with Joseph B. McFarland, P.A., in Tampa.

This column is submitted on behalf of the Trial Lawyers Section, Thomas P. Scarritt, Jr., chair, and Thomas P. Barber, editor.
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Author:McFarland, Joseph Bothwell
Publication:Florida Bar Journal
Geographic Code:1U5FL
Date:Nov 1, 2001
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