In Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), the Florida Supreme Court issued its seminal opinion on the tension created between Florida law’s strong preference for having cases resolved on their merits (substance over form) and the importance of following procedure and enforcing deadlines.

The court set forth the facts:

Carolann Kozel filed a medical malpractice complaint against Steven Ostendorf on July 25, 1989 in the circuit court of Lee County. Ostendorf filed a motion to dismiss on the grounds that the complaint failed to state a cause of action and that Kozel failed to comply with section 766.205, Florida Statutes (1989). The court granted Ostendorf’s motion to dismiss and granted Kozel twenty days to amend her complaint. By agreement of the parties, the time period to amend the complaint was extended another ten days. Kozel’s attorney, Kelley A. Finn, did not file the complaint until July 23, 1990, over five months past the due date. On Ostendorf’s motion the circuit court then dismissed the complaint with prejudice and the district court affirmed.

The Florida Supreme Court noted that the district court had properly recognized that a trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment.^[1]  However:

Although such broad power is vested in the trial court, it is not necessary or beneficial for that power to be exercised in all situations. We concur with Judge Altenbernd’s suggestion that the trial courts need a meaningful set of guidelines to assist them in their task of sanctioning parties and attorneys for acts of malfeasance and disobedience. Kozel, 603 So.2d at 605 (Altenbernd, J., dissenting). Without such a framework, trial courts have no standard by which to judge the severity of the party’s action or the type of sanction that should be imposed.

In the instant case, reasoned the Florida Supreme Court, the trial court had acted within the boundaries of the law. However:

… the court’s decision to dismiss the case based solely on the attorney’s neglect unduly punishes the litigant and espouses a policy that this Court does not wish to promote. The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation. Fla.R.Civ. Pro. 1.010. This purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the delayed filing of the complaint. 

…

Dismissal “with prejudice” in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel. We are not unmindful of the rule that counsel is the litigant’s agent and that his acts are the acts of the principal, but since the rule is primarily for the governance of counsel, dismissal “with prejudice” would in effect punish the litigant instead of his counsel.

(emphasis added).

The court cited Beasley v. Girten, 61 So.2d 179, 181 (Fla. 1952) for this reasoning. Because dismissal is the ultimate sanction in the adversarial system, ruled the court, “it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” The Florida Supreme Court continued:

This Court is vitally concerned with the swift administration of justice at both the trial and appellate levels. In the interest of an efficient judicial system and in the interest of clients, it is essential that attorneys adhere to filing deadlines and other procedural requirements.^[2] However, a fine, public reprimand, or contempt order may often be the appropriate sanction to impose on an attorney in those situations where the attorney, and not the client, is responsible for the error. To assist the trial court in determining whether dismissal with prejudice is warranted, we have adopted the following set of factors set forth in large part by Judge Altenbernd: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

These six factors have come to be known as the “Kozel factors.” It is important to have a lawyer to knows how to remind the trial court that these factors state the law. Preferably, no deadlines would get missed. But if they do, the trial court should not punish the litigant with the ultimate sanction of losing the case based on understandable mistakes that were not the litigant’s fault.