This blog has two goals. First, I want to give a general overview to policyholders with active litigation about how the COVID-19 pandemic is temporarily changing Florida’s litigation landscape. Second, I provide policyholders options to keep their cases progressing in state and federal court.
The Florida Constitution and the judicial administration rules vest the Chief Justice of Florida with immense power to regulate court activity and the legal profession. On April 6, 2020, Chief Justice Charles Canady issued an administrative order that has profoundly impacted the practice of law in Florida.1 The highlights for policyholders and their attorneys include:
- State court judges are authorized and encouraged to use technology to facilitate hearings and proceedings;
- Court reporters can administer oaths by audio-visual connections before depositions;
- Jury trials are suspended until the end of May 2020;
- In-person proceedings in Court are suspended until the end of May 2020.
Overall, I believe that judges and attorneys adapted quickly to the Chief Justice’s order. Many judges have used telephonic hearings to great effect to advance their civil dockets. Moreover, attorneys have taken and defended depositions successfully by videoconference.
Although pressing cases towards conclusion is always a goal, the pandemic has impacted the ability of parties to obtain a trial date. The suspension of jury trials will likely create a backlog of cases that require factual adjudication for resolution. After all, there are limited numbers of judicial officers, courtrooms, and trial weeks to service the thousands of litigants appearing in Florida’s courts.
How then can policyholders and their attorneys keep their cases progressing? Below are a few suggestions.
First, attorneys can continue to employ the use of video depositions to engage in discovery. This option has the added benefit of increased scheduling coordination and reduction of deposition costs. Second, video mediations are becoming more prevalent. While there is always a benefit to in-person mediations, I have found that most attorneys and adjusters are willing to negotiate in good faith over video conferencing. Third, robust scheduling conversations with opposing counsel will help keep the case moving towards finality. Fourth, policyholders and their attorneys—and this is a very case-specific tactical decision—may consider waiving their right to a jury trial and allow the judge to weigh the evidence at a bench trial.
For policyholders with cases in federal court, there are a few additional concerns. Unlike many of their state court colleagues, federal judges often carry both a criminal and a civil caseload. This causes special difficulties for federal judges because criminal defendants have guaranteed constitutional and statutory rights to a speedy trial. Many federal judges (quite understandably) will prioritize criminal trials over civil trials when the accused is in jail without bond. Accordingly, when federal court proceedings kick into high gear again, I think all policyholders and their attorneys can expect a backlog of criminal trials that will need resolution before their cases are heard on the merits.
Fortunately, policyholders have at least one option to consider if they find themselves with a continued trial date: submitting to the jurisdiction of a US Magistrate Judge. Many of the same points I made in my February 2020 contribution to the Merlin Law Group’s blog on mediations with magistrate judges argue in favor of submitting to a magistrate judge’s jurisdiction to preside over policyholders’ civil trials:
- Magistrate judges are more likely to give the parties a date-certain trial. There are limitations on a magistrate judge’s constitutional authority to preside over cases. Except for federal misdemeanors (yes, there are federal misdemeanor crimes!), I am unaware of any magistrate judge presiding over a felony trial. Accordingly, although their motion practice dockets are full, magistrate judges may be more willing to work with the parties to schedule date-certain trials. There are just simply fewer possibilities that a criminal trial will overtake a policyholders’ trial term.
- Magistrate judges are some of the best lawyers in the country. The selection process to serve as a magistrate judge is intensive and exclusive, and only the best need apply. Before taking the bench, each magistrate judge has in some way distinguished himself or herself through service, education, skill and ability. Better still, their integrity and adherence to a fair and impartial process is beyond contestation. If a magistrate judge presides over the case, one of the best lawyers in the state will be calling the legal and evidentiary balls-and-strikes at trial.
- Magistrate judges have the resources to prepare and serve as great trial judge. In addition to a lifetime of experience, magistrate judges have staff and courtroom personnel that can help them research issues of law and investigate the proper law to apply at trial. Most magistrate judges require pre-trial briefing from each party, and they closely scrutinize all submissions and proposed jury instructions. Better still, many magistrate judges have prior judicial service at the state court level. Although district court judges usually preside over trials, magistrate judges are equally likely to be the high-quality and impartial judicial officer litigants want presiding over the case.
- Magistrate judges have a lot of experience picking civil juries. Often, the district judge asks the magistrate judge to preside over jury selection for their cases. Magistrate judges often have a lot of experience ruling on for-cause and others juror challenges and making sure that the jury selection process is conducted fairly and efficiently.
- Magistrate judges have often been involved with the case since its inception. Throughout the course of the case, it is very likely that magistrate judges have issued orders or reports and recommendations. They are often intimately aware of the case’s procedural posture, facts, and deadlines.
Of course, every case is different and the facts and circumstances underlying this post may change soon. I hope that this blog helps alleviate some of the uncertainty policyholders are facing and provides viable options to policyholders and their attorneys for resolving their cases.
1 You can view the order here: https://www.floridasupremecourt.org/content/download/633282/7195631/AOSC20-23.pdf