Proposed Complex Litigation Rule

  For the last two years, spy on cell phone without physical access the undersigned has been privileged to be a member of the Supreme Court Task Force on the Management of Cases Involving Complex Litigation. On April 30, 2008, app to spy on someones phone the Task Force submitted to the Supreme Court a proposed rule on complex litigation. The Court has asked the Florida Bar to publish the proposed rule in the July 15, 2008, Bar News and has ordered that any comments must be filed with the Supreme Court on or before September 15, 2008, with responses due from the Task Force on or before October 15, 2008. Presumably following this procedure, the Court will consider the adoption of this rule as well as several implementing rules. Because of the importance of this rule in potentially changing the way complex litigation is handled in Florida, I have taken the liberty of utilizing my space in this Bulletin to publish the proposed rule in lieu of my monthly case comment. This rule is the product of two years of hard work by the Task Force which consisted of trial lawyers from all disciplines as well as Chief Judges from around the State as well as appellate judges.


(a) Complex Litigation Defined. At any time after all defendants have been served, and an appearance has been entered in response to the complaint by each party, any party, or the court on its own motion, may move to declare a case complex. The court shall convene a hearing to determine whether the case requires the use of complex litigation procedures and enter an order within 10 days. (1) A “complex case” is one that is likely to involve complicated legal or case management issues and that may require extensive judicial management to expedite the case, keep costs reasonable, or promote judicial efficiency. (2) In deciding whether an action is a complex case, the court must consider whether the action is likely to involve: (A) numerous pre-trial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve; (B) management of a large number of separately represented parties; (C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court; (D) pre-trial management of a large number of witnesses or a substantial amount of documentary evidence; (E) substantial time required to complete the trial; (F) management at trial of a large number of experts, witnesses, attorneys, or exhibits; (G) substantial post-judgment judicial supervision; and (H) any other analytical factors identified by the court or party that tend to complicate comparable cases and which are likely to arise in the context of the instant case. (b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within sixty (60) days from the date of the order declaring the case complex. (1) At least twenty (20) days prior to the date of the initial case management conference, attorneys for the parties shall meet and prepare a joint statement which shall be submitted to the court within 14 days of the conference outlining a discovery plan and stating: (A) brief factual statement of the case, which includes the claims and defenses; (B) a brief statement on the theory of damages by any party buy thesis online seeking affirmative relief; (C) the likelihood of settlement; (D) the likelihood of appearance in the action of additional parties or any non-parties to whom allocation of fault will be sought; (E) the proposed limits on the time: (i) to join other parties and to amend the pleadings; (ii) to file and hear motions, (iii) to identify any non-parties whose identity is known, or otherwise describe as specifically as practicable any non-parties whose identity is not known, (iv) to disclose expert witnesses; and (v) to complete discovery; (F) the names of the attorneys responsible for handling the case; (G) the necessity for a protective order to facilitate discovery; (H) proposals for the formulation and simplification of issues, including the elimination of frivolous claims or defenses, and the number and timing of motions for summary judgment or partial summary judgment; (I) the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, stipulations regarding authenticity of documents, electronically stored information, and the need for advance rulings from the court on admissibility of evidence; (J) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, and mediation; (K) a preliminary estimate of the time required for trial; (L) requested date or dates for conferences before trial, a final pretrial conference, and trial; (M) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant; (N) number of experts and fields of expertise; and (O) any other information that might be helpful to the court in setting further conferences and the trial date. (2) Lead trial counsel and a client representative shall attend the initial case management conference. (3) Notwithstanding Rule 1.440, Fla.R.Civ.P. at the initial case management conference, the court will set the trial date or dates no sooner than 6 months and no later than 24 months from the date of the conference unless good cause is shown for an earlier or later setting. The trial date shall be on a docket having sufficient time within which to try the case and, when feasible, for a date or dates certain. The trial date shall be set after consultation with counsel. When the case is set to be tried before a jury, counsel shall provide to the court at the case management conference assurances that the trial date has been discussed with their clients. The court shall, no later than 2 months prior to the date scheduled for jury selection, arrange for a sufficient number of available jurors. Continuance of the trial of a complex case should rarely be granted and then only upon good cause shown. (c) The Case Management Order. The case management order shall address each matter set forth under subdivision 1.200(a) Fla.R.Civ.P. and set the case for a pre-trial conference and trial. The case management order shall also specify the following: (1) Dates by which all parties shall name their expert witnesses and provide the expert information required by subdivision 1.280(4) Fla.R.Civ.P. If a party has named an expert witness in a field in which any other parties have not identified experts, the other parties may name experts in order research paper online that field within 30 days thereafter. No additional experts may be named unless good cause is shown. (2) Not more than 10 days after the date set for naming experts, the parties shall meet and schedule dates for deposition of experts and all other witnesses not yet deposed. At the time of the meeting each party is responsible for having secured three confirmed dates for its expert witnesses. In the event the parties cannot agree on a discovery deposition schedule, the court, upon motion, shall set the schedule. Any party may file the completed discovery deposition schedule agreed upon or entered by the court. Once filed, the deposition dates in the schedule shall not be altered without consent of all parties or upon order of the court. Failure to comply with the discovery schedule may result in sanctions. (3) The court shall schedule periodic case management conferences and hearings on lengthy motions at reasonable intervals based on the particular needs of the case. The attorneys for the parties shall meet and confer no later than 15 days prior to each case management conference or hearing. They shall notify the court at least 10 days prior to any case management conference or hearing if the parties stipulate that a case management conference or hearing time is unnecessary. Failure to timely notify the court that a case management conference or hearing time is unnecessary may result in sanctions. (4). The case management order may include a briefing schedule setting forth a time period within which to file briefs and or memoranda, responses and reply briefs or memoranda, prior to the court considering such matters. (5). A deadline for conducting alternative dispute resolution. (d) Final Case Management Conference. The court shall schedule a final case management conference not less than 90 days prior to the date the case is set for trial. At least 10 days prior to the final case management conference the parties shall meet to prepare a case status report. The status report shall contain in separately numbered paragraphs: (1) A list of all pending motions requiring action by the court and the date those motions are set for hearing. (2) Any change regarding the estimated trial time. (3) The names of the attorneys who will try the case. (4) A list of the names and addresses of all non-expert witnesses (impeachment, rebuttal or otherwise) intended to be called at trial. (5) A list of all exhibits intended to be offered at trial. (6) Certification that copies of witness and exhibit lists will be filed with the Clerk of the Court at least 48 hours prior to the date and time of the pretrial conference. (7) A deadline for the filing of the final list of witness and exhibit list that will be used in the trial. (8) Any other matters which could impact the timely and effective trial of the case. The Court has directed that comments on the proposed rule must be filed in paper format and an electronic copy provided to the Court in accordance with AOSC04-84. An original and nine copies must also be filed. I urge all interested lawyers and judges to review the rule and make comments to aid the Court and the Task Force in the implementation of what I believe will be a procedure that will streamline the handling of complex litigation. In the meantime, I ask that all Civil Circuit Judges consider utilizing this procedure with the variant that a case be “reserved” for trial rather than “set” for trial under sec. (b)(3) so as not to violate Rule 1.440 Fla. R. Civ. P. Such a preliminary use of the proposed rule may well give our trial judges an opportunity to provide comments on how well the proposed rule works in actual practice which would assist both the Court and the Task Force immeasurably. Originally published September 2008

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