MIAMI, FORT LAUDERDALE, AND ORLANDO FLORIDA June 12, 2023: Undoubtedly, Florida, the Sunshine State, has been leading the nation in new residents in the last couple of years. As a native Floridian, a Florida Gator and a Miami Hurricane, I certainly can understand why people fall in love with what this state has to offer. And, as a Florida attorney for over twenty years, I have a theory as to why some have and will find this state so attractive as a home for their fraudulent business practices. In short, with the aid of covid-related responses to the Florida state court system, and how those are adapted to individual court cases, a litigation savvy fraudster could win in court by taking advantage of new case management directives which are seemingly getting more stringent. As a practicing Florida lawyer for over 20 years, I have some suggestions for fellow plaintiff commercial litigation attorneys as to how to navigate what has become an increasingly difficult balancing act between Florida’s initial and evolving response to the effects of the pandemic versus ensuring due process for the victims of business frauds.
At the outset, as a practitioner in federal, state, bankruptcy and appellate courts, I believe that we as Americans can be very proud of our judicial system and the judges, clerks and other staff who work tirelessly so that we have a place to resolve disputes. Undoubtedly, these folks are the unsung heroes who handle massively overburdened dockets and from time to time, that burden substantially spikes, such as after the great recession in 2008. However, neither the courts in Florida or around the country had ever experienced an interruption like the pandemic and now that things are getting back to “normal”, the proverbial pig consisting of pre and post-pandemic cases must pass through the python.
While there is no surprise that people with plenty of money who have chosen to defraud others have always had an incomprehensible monetary advantage to win the war of attrition against their victim, what has developed since the Covid-19 pandemic as it relates to changes to the judicial system in Florida has only put more weight on the thumb of the scale of justice in this regard.
How did Covid-19 make an unfair situation into an evolving crisis of justice for victims of commercial and business fraud? In this article, I will discuss the fairly recent changes to Florida court case management, how they have affected litigation and some suggests of what practitioners can do to navigate through these extraordinary times.
At the very beginning of the Covid-19 pandemic, we all remember businesses closings but “civilians” probably do not know what happened to the Florida state court system since the beginning of the pandemic unless they have been unfortunate enough to have a case pending during that time.
For the first couple of months, it was rather chaotic. One day, almost every hearing in any court case was live and in person no matter if it was uniform motion calendar, evidentiary hearings or trial. The next day, there were no live hearings at all and trials, both jury and non-jury, were effectively suspended. Within the first two months, Florida Circuit Court and County Court Judges began to use zoom for their routine motion calendar hearings, and as it appeared that this national emergency was going to continue, longer more complex evidentiary hearings were also conducted via zoom or its equivalent.
At the same time courts were adapting to virtual hearings. there were serious delays in the clerk’s office relative to filing new cases and having summons issued. The system that was bursting at its seams running on the hamster wheel to just tread water was effectively changed forever. Hearings were cancelled, live depositions and mediations needed to be rescheduled to be conducted remotely and trials that had been scheduled for months and months were cancelled. As a predominantly plaintiff’s commercial litigation firm looking at the situation, it was clearly a civil fraudster-defendant’s dream. Think about it – the plight to recover money or property from a business dispute or other commercial litigation matter went from a crawl to a stall to a standstill. Defendants facing the music got a reprieve as victims had to wait for the court system to get back online.
Undoubtedly, something had to be done. In response to 10 alarms going off at the same time, the Florida Supreme Court entered certain emergency orders to keep the courts moving with consistency and best practices.
On April 6, 2020, the Supreme Court issued Administrative Order AOSC20-23 which required trial court judges to implement procedures to keep civil litigation cases moving in an environment where courthouses were all but closed to the public.
These administrative directives formally approved “best practices” relative to conducting hearings remotely, as well as allowing remote depositions and mediations. As a litigator, there were obvious benefits to not having to drive to the courthouse for a five-minute motion calendar hearing or other proceedings, but preferentially, I believe evidentiary hearings involving testimony from witnesses and exhibits were not exactly ideal much like watching a sports game on television versus being at the game. It all took some getting used to for lawyers and judges – especially with some attorneys showing up on zoom lying in bed or, the best I heard about, was an attorney who showed up with a filter as a cat – the poor older gentleman had to argue that he was not, in fact, a cat – but I digress.
Just over a year later, on April 13, 2021, the Florida Supreme Court issued its twelfth amendment to AOSC20-23 which now directed the chief judges of the judicial circuits to direct the judges in that jurisdiction to issue specific orders as to each pending civil case to case management.
The April 13, 2021 Amended AOSC20-23 specifically mandated that judges must issue a case management order that specifies certain deadlines and indicates that “the deadlines established in the order will be strictly enforced by the court.” Interestingly, the Administrative Order doubled down stating that the chief circuit judge “shall direct all judges within their circuits to strictly comply with Florida Rule of General Practice and Judicial Administration (FRGPJA) 2.545(a),(b), and (e), which respectively require judges to conclude litigation as soon as it is reasonably and justly possible to do so, to take charge of all cases at an early stage and to control the progress of the case thereafter until it is determined, and to apply a firm continuance policy allowing continuances only for good cause shown.”
After April 13, 2021, when the Administrative Order’s amendments went into effect, the same amplified the emphasis of FRGPJA 2.250 which dictates that as a general rule, circuit civil cases, broken up into groups, must be completed within 12 months for streamlined cases with few parties, up to 18 months for a jury trial and more complex cases (the rare exception) may take up to 24 months.
Additionally, the Florida Supreme Court required accountability in its directives which required that each Florida Circuit Court report individual cases that were exceeding the outlined time limitations of 12, 18 and 24 months on a quarterly basis. The consequences of this reporting were not immediately apparent but as I will get into shortly, there is no doubt that the heat is on Florida judges and the resulting effect on individual cases has, in my opinion, given even more of an advantage to the fraudster defendant who knows how to game the system through intentional delay tactics and frivolous discovery objections.
As of the end of April 2021, the individual circuit courts complied with this directive and published their respective local orders.
At first, in some of my cases after April 2021, we started to receive case management orders setting case management hearings. Thereafter, on its own or after a hearing, case scheduling orders were entered marking the time to complete factual discovery, submit witness lists, file certain motions and when the trial period would commence. Again, at first, it seemed there was a practical, balanced approach being taken because it appeared to me that most judges were mindful of their obligations to due process with due respect given to the new rules.
However, more recently, since the end of 2022, from my experience and those of my colleagues, many judges from various Florida state courts have been expressing the pressure they are under to comply with the Florida’s Supreme Court directives and local rules – both directly and/or indirectly through their decisions. As a litigator, while I am used to judicial decisions I do not agree with, but certainly respect, there is a palatable tension in the air and, in my opinion, speaking generally, due process is at risk where judges are under new pressure by their local circuit administrative orders or those of the Florida Supreme Court. Indeed, where the responsive measures principally govern decisions rather than the law and facts of a particular case, the lack of due process can result in the pre-mature and unnecessary dismissal of a litigation case.
By example, in a recent reported appellate case on this very issue, a plaintiff had their case dismissed by a court for an alleged failure to comply with the Florida Supreme Court’s Administrative Order.
In Massey v. Thomas, 342 So.3d 680 (Fla. 4th DCA 2022), the trial judge dismissed Plaintiff’s amended complaint on grounds that it was filed untimely based upon the new Administrative Order. In reversing the trial court, the Fourth District Court of Appeal stated in relevant part:
The plain language of the [Florida Supreme Court’s] Order AOSC20-23 directed the trial court to “strictly comply” with the Florida Rules of General Practice and Judicial Administration by concluding litigation “as soon as it is reasonably and justly possible to do so” and by applying “a firm continuance policy allowing continuances only for good cause shown.” As clearly stated, the order applies to continuances, not to every order setting a time for performance. In trial procedure, a “continuance” has been defined as “[t]he adjournment or postponement of a trial or other proceeding to a future date…” No language in the order required or authorized the trial court to automatically dismiss the case, effective with prejudice, for failure to adhere to a court-ordered deadline in contravention of prevailing law.
This decision by the Fourth District Court of Appeal is encouraging as it provides clarity to the implementation and interpretation of the administrative directives. However, while an appeal might remedy some trial court decisions to throw out cases, limit discovery after a deadline, or prevent a party from having a full and fair hearing, the truth is that most victims of business frauds already have limited resources and having to pay for an appeal to restore their rights is very hard to explain not to mention swallow.
If there is indeed increasing pressure on our Florida judiciary to push cases and clear dockets, the same provides a clear incentive for the usual suspects to bolster efforts to game the system especially where many judges do not have a fifteen (15) minute special set hearing slot for over six months to hear a motion to compel –and, absent moving deadlines, that hearing might not occur because it gets too close to calendar call or trial.
What can you do as a plaintiff’s commercial litigation attorney to take the wind out of the defendant fraudster’s sails while supporting our judiciary in moving cases along during this extraordinary time?
Well, my best suggestion is an invitation to shift your mindset towards attempting to get your Client and the defendants to a Pre-Suit Mediation as part of your Pre-Suit Operation. Pre-Suit Mediation is effective and attractive even to the fraudster litigant. Once you have done your investigations and prepared your initial pleadings, strongly consider advising your Client to serve a demand for pre-suit mediation and offer the alternative to litigation. Maybe it seems counterintuitive, but many of the “bad-guys” are so used to litigation that, while they are prepared to go through it, nobody likes paying their lawyers for defending a case. Offering a different path than straight-nose litigation is not a sign of weakness but provides a monetary incentive to a defendant whom, if you had the chance to speak to them directly, is likely sick of the tried status quo of constant court battles.
Traditional thinking is that “business disputes are best left to the courts” or “I need my discovery before mediation.” However, in today’s day and age, there aren’t too many “who done its.” We as litigators already have much more in the form of discovery than existed twenty years ago at our fingertips just from what we can onboard from our Clients during initial interviews. Clients have emails, text messages, invoices, receipts and other electronically stored information – most of which they probably need to be reminded that they have in my experience.
If your case doesn’t settle at the pre-suit mediation, another suggestion is to continue to think outside the box by asking the mediator to stay on to assist the parties over the next few weeks to create settlement solutions that escaped the pressure of the day of mediation. We all hear a very different side of the story from the other side in a motion to dismiss, or summary judgment – and the pre-suit mediation offers an opportunity to consider those same arguments before filing which can inform how a case is handled, narrow the claims, and eliminate parties. Heck, your Client may learn that they don’t have a case at all and certainly is hard to swallow but also saves them from expensive litigation.
If litigation is unavoidable, then be ready to rock and roll on day one. As Florida Supreme Court Chief Justice Charles Canady said at a March 30, 2021, on a Zoom town hall regarding the Administrative Order becoming effective: “People are going to have to understand that when they come to court…they need to be ready to go. If they’re not ready to do that, then they probably shouldn’t be filing a complaint…That’s with a high level of generality.”
Awareness is the key. Undoubtedly, the Florida court system is going through a very challenging time and some practitioners are finding out the hard way that this is, in fact, affecting litigation cases in a profound way which provides an opportunity for the “bad guys” to win by a technical knockout. Being proactive, avoiding litigation if possible and just going an extra mile before filing may make all the difference, especially for our honored Florida Judges, Clerks and their Staffs.
I would like to hear about your experiences as they relate to these new case management directives and how they have affected your litigation matters, as well as any suggestions you may have. As the saying goes – “iron sharpens iron”.
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