Judicial Procedures
Trial tribulations

By: Daniel Ostrovsky
The Daily Business Review
October 5, 2006

Divisions already have emerged on a new task force appointed by the Florida Supreme Court to study the most effective ways for Florida courts to handle complex civil litigation including mass torts, class actions, product liability and medical malpractice.

Last month, Chief Justice R. Fred Lewis established the Task Force on Management of Cases Involving Complex Litigation.

The task force is an acknowledgment by the Supreme Court of a near consensus among trial lawyers that complex cases in the state court system tend to linger for years at the pretrial stage. The task force includes plaintiff attorneys, corporate defense lawyers and judges.

"Florida may lack sufficient rules of court procedure to effectively guide the judicial management of complex cases within the state courts system and may unnecessarily expend judicial resources in resolving discovery and other pre-trial matters in all types of cases," the order states.

Plaintiff lawyers feel frustrated by the reluctance of trial judges with large dockets to schedule trial dates for complex cases that may go on for weeks or months. Insurance lawyers deny accusations by plaintiff lawyers that they use the backlogged docket system to stall cases and delay paying out damage awards.

Task force member Theodore Babbitt of Babbitt Johnson Osborne & LeClainche in West Palm Beach said complex cases often go into a "black hole" and take years to get to trial. "This is one of the most important commissions ever appointed by the Supreme Court," he said.

The recommendations of the task force could impact the way the state court system deals with many of the cases that typically result in big verdicts.

Cutting down on the time that it takes to litigate a complex case could mean that insurance companies won’t have nearly as long to hold on to their money. In addition, judges may have to dramatically restructure their calendars.

Babbitt cited the case of one of his clients, a 70-year-old man with prostate cancer who filed a medical malpractice suit in connection with the death of his wife. It took years to have the case set for trial, because the trial judge refused to schedule a trial date, Babbitt said.
Babbitt felt that the case was urgent, because the man could have died from his illness. "Finally, I had to go to the chief judge and get a senior judge appointed to try the case," Babbitt said.

Judges are reluctant to schedule complex cases that take weeks if not months to try because they have large dockets and fear falling behind, he said.

But task force member Charles S. Grimsley, the general counsel of North Miami-based United Automobile Insurance Group, said complex cases tend to involve parties that can afford to resolve their disputes through mediation or arbitration. He suggested the task force consider recommending a "quasi-judiciary" business court system that models itself on binding arbitration.

Trial judges "must deal with so many different types of legal disputes that they are not really experts in any one area," Grimsley said.

Under his proposal, only judges or mediators experienced in complex cases would preside over such trials.

Complaints about delays

The recommendation for creating a task force to study the handling of complex cases came from the Work Group on Standards for Jury Panel Sizes, which was created by administrative order in 2004.

The task force was charged by Chief Justice Lewis with determining the characteristics that define a case as complex and reviewing whether new rules are necessary to process complex cases.

"We are going to make sure to analyze and recommend ways to ensure that we can effectively and expeditiously get complex cases processed through the state court system so that they do not languish," said 2nd District Court of Appeal Judge Edward C. LaRose, who serves on the new task force.

Broward Circuit Judge Thomas M. Lynch IV, a member of the jury size panel and the new complex-case panel who also serves as administrative judge for the Broward court’s civil division, said the jury-size committee recommended that complex-litigation issues be reviewed by a separate committee.

Babbitt said that the jury work group took public testimony in Miami, and 30 to 50 lawyers showed up to complain about the "inability to set those long cases for trial."

Lynch said his jurisdiction is not having a problem handling complex cases. He contended that the public testimony in relation to complex cases came about as a result of e-mails sent out by a "couple of committee members" to members of the plaintiff bar.

Specialized courts more common

Specialized courts are becoming more common in Florida and around the country.

For instance, in 2003 the 9th Judicial Circuit Court in Orlando established a complex business litigation court. That court specializes in handling complex business cases, such as antitrust suits, intellectual property cases, franchise cases and unfair competition cases.
A year later, Judge Lynch helped launch extended trial units in Broward, which are designed to handle complex cases. While judges assigned to the units handle the complex "docket-busters," other judges are free to dispose of shorter cases. The unit, Lynch said, has been successful "in getting these longer cases tried."

But Fort Lauderdale litigator William R. Scherer Jr., who is not on the task force, said that it "takes a while" to get a case to the extended trial unit judges, because they only take a case once all the pretrial work has been completed.

Scherer, of Conrad & Scherer, said complex cases should be identified as such early on, so that they can be "gotten away from the judge who has 1,400 other cases into a division that handles complex cases."

Lynch, however, said that he spends most of his time presiding over trials. Spending time on pretrial matters would distract him from doing that, he said.

Babbit said the key to processing complex cases in a timely manner is to set a trial date as soon as the case is filed, because "that’s what settles cases. Until you get the case set for trial, nothing gets done."

One obstacle, he said, is that insurance companies have a financial incentive to drag out complex cases. The longer it takes, he argued, the more time the companies have earn investment returns on the money.

But Grimsley, the general counsel of United Automobile Insurance Group, said "that’s a bunch of boloney that insurance companies want to drag cases out. We want as expeditious and fair a trial on the merits as any other party does."

Grimsley said that when insurance companies lose a court case, they typically end up paying the other side’s attorney fees. "Businesses do not want to be in a court system that takes five or six or seven years to take the case to trial," he said. "Why would we want to drag out a case that’s just increasing our liabilities in terms of plaintiffs increasing their fees?"

But the Daily Business Review has reported that United has come under fire from plaintiff lawyers for vigorously contesting many of the personal injury protection claims filed by policyholders, rather than paying the claims or settling them in court. As a result, United is one of the most sued companies in the state, with thousands of cases filed against them in Broward and Miami-Dade courts.

Lawyer Peter R. Siegel, a partner in the Fort Lauderdale office of Greenspoon Marder, said that state courts could adopt measures that are already employed in federal courts. Those methods include setting complex cases on a separate track, providing firm trial dates and pretrial deadlines and increasing the use of technology.

For instance, Siegel said, the federal judiciary’s electronic filing system — which allows pleadings to be filed and reviewed electronically — can save time for all the parties involved in a complex case.

Scherer agreed with the need for state courts to embrace technology. "The whole world uses technology more than the judiciary," he said.

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