This summer, the Florida Supreme Court approved the addition of Rule 1.201 to the Florida Rules of Civil Procedure, which is certain to change the landscape of litigation for a variety of cases.1 Entitled “Complex Litigation,” Rule 1.201 establishes a framework akin to the Federal Rules of Procedure, with mandatory case management conferences, required disclosures at certain intervals, and a guarantee of a trial within two years in order to promote the efficient and timely disposition of cases, excepting matters concerning family law.2 The following is a synopsis of the Rule and its practical application.
First, any party may, on motion, request that a case be declared complex either after service upon all parties, or prior to service, if there is a showing as to why all defendants have not been served.3 If the motion is opposed, the Court is to hold a hearing, and issue an Order within 10 days of the conclusion of that hearing, determining whether the rules of complex litigation will apply.4 Complex actions are defined as actions that involve “complicated legal or case management issues.”5 Considerations that factor into this determination include the novelty of issues, logistical concerns related to the number of represented parties, the number of witnesses or anticipated volume of evidence, as well as the presentation of evidence at trial, judicial involvement following judgment, and “any other analytical factors identified” which are “likely to arise.”6
At first blush, it would appear this Rule would only apply to matters such as claims for professional malpractice, commercial litigation or any other type of suit with a complex or intricate fact pattern. However, with the inclusion of cases that present management issues, a relatively simple dispute which involves multiple parties would also fall under the penumbra of this rule, such as is often the case in class action disputes.
In all actions deemed “complex,” a case management conference must be held within 60 days.7 Prior to that hearing, all parties are required to confer in order to prepare and file a discovery plan which outlines the facts and theories supporting the allegations and defenses asserted, addresses the possibility of settlement and the appearance of additional parties.8 Of note, the attorney of record must be identified and the parties are also urged to simplify issues and agree to admitted facts, avoid motion practice, identify and agree to the authenticity of documents, and identify both fact and expert witnesses.9 Furthermore, both the “lead trial attorney and a client representative” must attend the case management conference.10 Thereafter, a Case Management Order establishing discovery deadlines including disclosure of witnesses and expert opinions will be issued.11
At the case management conference, the trial will be set to occur “no sooner than 6 months and no later than 24 months” after the initial conference. Furthermore, Rule 1.201 specifically provides that continuances should “rarely be granted” and only for good cause.12 Finally, 90 days prior to trial there is to be another case management conference to address pending motions and other trial issues.13
This author expects that the tactical advantages offered by application of Rule 1.201 will lead practitioners to invoke this rule whenever possible. For example, while the Rules of Judicial Administration provide a jury trial in a civil matter should occur 18 months after being noticed at issue for trial, Rule 1.201 may be used by Plaintiffs who have positioned their case for trial prior to the filing of a Complaint in order levy pressure on Defendants who will be forced to prepare within a certain window.14
Arguably, the ability to prepare for trial may also be complicated by external forces, such as the failure of non-parties to respond to subpoenas or witnesses failing to appear for deposition. However, Rule 1.201 does provide a mechanism for addressing these issues with a subsequent conference 90 days before the trial period.15
Rule 1.201 should also preclude other practices which often frustrate parties leading up to trial, especially the disclosure of new opinions from expert witnesses or treating physicians. Typically, if new opinions were disclosed at the eleventh hour, a party needed to demonstrate prejudice in order to seek recourse.16 However, surprise opinions or disclosure of evidence, in contradiction to the deadlines established by the Court, may be more readily dealt with under Rule 1.201 as the Courts have plenary power to impose a sanction for violation of an Case Management Order.17 Logically, this will also apply to other common discovery disputes which arise. Unfortunately, some parties (either though laziness or in an effort to gain some sort of perceived advantage) may stall in responding to discovery or provide deficient answers. Rather than go through the time consuming process of filing a Motion to Compel, discovery disputes may be brought to the immediate attention of the Court. Fortunately, many of the issues discussed here can easily be ameliorated through a prompt and fair evaluation of the case, immediate identification of defense issues, and aggressively seeking out evidence in harmony with your litigation plan.
1 Mark D. Killian, Court OK’s Complex Litigation Rule, Florida Bar News (June 15, 2009).
2 In Re: Amendments to the Florida Rules of Civil Procedure – Management of Cases Involving Complex Litigation, Case No.: SC08-1141.
3 Fla. R. Civ. P. 1.201(a).
4 Fla. R. Civ. P. 1.201(a).
5 Fla. R. Civ. P. 1.201(a)(1).
6 Fla. R. Civ. P. 1.201(a)(2).
7 Fla. R. Civ. P. 1.201(b).
8 Fla. R. Civ. P. 1.201(b)(1).
10 Fla. R. Civ. P. 1.201(b)(2).
11 Fla. R. Civ. P. 1.201(c).
12 Fla. R. Civ. P. 1.201(b)(3).
13 Fla. R. Civ. P. 1.201(d).
14 Fla. R. Jud. Admin. 2.2250.
15 Fla. R. Civ. P. 1.201(d).
16 See, e.g., Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
17 See, e.g., Michalak v. Ryder Truck Rental, Inc., 923 So. 2d 1277 (Fla. 4th DCA 2006).
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Howard Scholl is a partner based in our firm’s Tampa office and an experienced trial lawyer. He handles cases involving personal injury, wrongful death, nursing home neglect, trucking defense, hospitality industry defense, medical malpractice, contract[...] Read more