Update: There have been some last-minute changes to the changes (as of December 6, 2024) since I published this article September 2, 2024: https://www.floridabar.org/the-florida-bar-news/florida-supreme-court-revises-civil-case-management-reforms-before-january-1-implementation/. The remainder of this article is as I published it on September 2 (I have not had time to edit it):

Several significant changes are coming to the Florida Rules of Civil Procedure and the way litigation will be conducted in Florida state courts, taking effect January 1, 2025. Many of the changes concern fundamental concepts (e.g., differences between the Florida and federal rules) that old-timers like me know as fundamental. In short, the changes seem designed to make the Florida rules more like the Federal Rules of Civil Procedure.

When I graduated from law school and passed the Bar exam in 1999—and for 25 years since—there were certain key differences between the Florida and federal rules of procedure, so much so that knowing these differences was a key aspect of passing the Bar exam. For example, the federal rule has always contained a duty to supplement prior discovery answers when new information becomes known, while the Florida rule did not.

The federal rule has—for a long time—required “automatic disclosures” to occur shortly after a new lawsuit is filed. In federal court, the parties are required to exchange all known relevant documents and witness information right away, at the start of the case. This makes sense. When a lawsuit is filed, both parties usually know pretty much what the case is about. While the defendant might feel it is not liable, it generally knows the documents and witnesses that are relevant to the claim. The federal rule has always required the parties to simply exchange this information at the start of a case, without waiting for a request for production or interrogatories.

The Florida rule has never had this automatic disclosure system, and parties discovered the same information only after serving interrogatories and requests for production on the opposing party. (Serving these discovery requests is easy enough, but discovery practice in Florida state courts is like going through the motions a little bit, when everyone probably knows 99% of what needs to be turned over to the other side without a request.)

In federal court, the judge issues a trial order rather early in the litigation. The parties are required to work together, shortly after a new case is filed, to submit a joint proposed scheduling order to the court. The scheduling order suggests whether the parties consider the case to be expedited, normal, or “complex,” which categorization affects when the trial date will be set for. The judge receives the parties’ proposed scheduling order and enters a trial order right away. The trial order sets a trial date—many months into the future—and sets deadlines such as the discovery cutoff, the deadline to amend pleadings and add parties, and the deadline to file dispositive motions. In Florida court, historically, a party has to file a “notice for trial” when a case is “at issue”—as discussed below, some lawyers and judges are confused by this rule—and request that the court set a trial date—something that might not happen until years after a case is commenced.

In short, the changes coming to Florida starting next year are attempting to mimic the federal system in all of these areas.

One interesting thing about this (attempted) change, however, is that Florida state court judges will still have significantly greater caseloads than federal district court judges, and state judges (unlike federal judges) still won’t have three or four high-level law clerks to help them issue rulings without hearings, as is the norm in federal court. It will be interesting, therefore, to see how it plays out in the real world.

Federal trial court judges have three or four full-time law clerks working for them, and these law clerks are always very smart, very hard-working recent law graduates who graduated from very good law schools at the top of their class. Getting a “federal clerkship” as one’s first job out of law school is a prestigious thing to do. When a party files a motion in federal court, the normal practice is for the court to rule on the papers without a hearing. In fact, a ruling “on the papers” is the presumption, and a party has to file a request to have a hearing if the party has some reason why a hearing would be beneficial to the court’s understanding. The result of this system, of course, is that lawyers are incentivized to do a good job with their written motions in federal court. Knowing that the judge will probably rule on the papers without a hearing incentivizes a lawyer to carefully make his best argument, citing the necessary law, in his written motion. When a party files a motion, the opposing party will most definitely file a written response, and that response will be well-written and presented if that party expects to have a chance of prevailing.

Why can this system of the judges ruling without a hearing happen in federal court? Well, each federal judge has three or four very smart and hardworking law clerks cranking out work product for them. The law clerks read the parties’ motions, research the law, and write the rulings. Obviously the judge can and often does edit the final work product, but many opinions are issued just as the law clerk wrote them, because the law clerks are smart and do a fine job. In short, each federal judge is like small law firm, with the judge operating as the senior partner with three or four hardworking associate lawyers working under him to get written work product done.

In state court, the judges have a far greater caseload and do not have four professional law clerks from the country’s best law schools writing their orders for them. Some state judges have intern-type law clerks, but they are often law students and, in any event, they are not paid a nice full-time salary like federal clerks are. The practice in Florida state court is for judges not to rule on a motion until after a hearing, which one of the parties has to request and schedule. I often tell my clients that when a motion is filed, the judge literally does not see it. The judge has thousands of cases. A motion sits “collecting dust” (that used to be literally true, but now everything, of course, is paperless) in the clerk of court’s office, until a party schedules a hearing and brings it in front of the judge. (Judges can sometimes rule without a hearing, such as simple ex parte motions to compel discovery, but even then, the moving party has to bring the motion to the judge’s attention.)

There is a thing that Florida lawyers know—but few clients see—called “motion calendar” in Florida state court. At motion calendar, a judge will have between 30 and 200 cases on the same docket, and the lawyers sit and wait until their case is called, arguing things like motions to compel better interrogatory answers, motions for sanctions, motions to set a trial date, motions to dismiss cases for procedural reasons, motions to strike witnesses, and motions for continuance of trial dates. These hearings used to occur in the courtroom, but nowadays they are usually done virtually using “zoom.” The interesting thing about the coming changes to the Florida Rules of Civil Procedure is that although they are going to make the procedural requirements more like federal court, the state court judges are still not going to have the ability to operate like federal court judges with their three or four law clerks.

That being said, let’s review the coming changes. The amendments will affect pretrial procedure, discovery, motion practice, and trial—essentially every aspect of a litigation matter. While the amendments are intended to streamline civil cases, the breadth of the changes may initially present some growing pains to litigants, lawyers, and judges.

Given that Florida state court judges—especially in South Florida—carry incredibly heavy caseloads that often limit the kind of active case management that we see in federal court, the onus will fall on lawyers to comply with the amendments to ensure that they achieve their stated goals. For example, there will be “automatic discovery disclosures”—as in federal court—that essentially should—if lawyers are playing fair—result in the production of 99% of all documents that would be produced in response to the requests for production of documents that are used currently. One pet peeve I’ve had for 25 years practicing law is the “legalese” effort that lawyers think they are forced to do—especially young associates at large law firms—to come up with dozens of requests for production, when one request should suffice: “Please produce all documents that are relevant to your claim (or defense) or that you might use as an exhibit if this case goes to trial.” Each party knows darn well, for the most part, what those documents are—each party knows what the case is about. We have never really needed a request for production with 75 different requests all asking for the same thing. But I digress.

But what the automatic disclosure rule—like many rules of procedure—requires is ethical and professional practice by lawyers. Unfortunately, some lawyers do not practice as they should. I can envision a problem with some lawyers simply not complying with the duty to hand over all known relevant documents without needing a request for production at the beginning of every case. One would hope they would pay for that gamesmanship in the same way they do now: if it comes time for the case to go to trial, a party will not be permitted to put a document into evidence if it was not produced during discovery. The new rule should lead to more efficiency. Everyone knows that relevant documents need to be produced to the other side if they are ever going to be used at trial. Lawyers don’t need a “request for production” to know what the vast majority of these documents are.

Another group of changes is related to case administration. Whereas circuits previously had discretion to decide whether cases should be assigned a case management track, the amendment to rule 1.200 now requires that every case be assigned to one of three case management tracks within 120 days. The three tracks are complex, general, or streamlined, and the chief judge of each circuit is required to enter a standing order addressing specific case management requirements related to each track. Thus, it will be important for practitioners to be aware of the standing case management order in the circuit where the case is filed to ensure compliance. In South Florida, we have already been following this type of system, pursuant to the chief administrative judge’s order, for a few years now.

For general and streamlined cases, courts are now required to issue a case management order that specifies the projected trial period, including at least eight specified deadlines, which “must be strictly enforced unless changed by court order.” While parties can still submit an agreed order to extend a deadline, the requested change must not affect other deadlines and courts may be less inclined to grant agreed extensions than they have traditionally been.

Importantly, the amendment to rule 1.200 requires that if a party requests a case management conference, the notice must identify specific issues to be addressed and list all pending motions. With reasonable notice to the parties, courts can address any pending motions, except for motions for summary judgment or those requiring evidentiary hearings, at the case management conference.

Consequently, practitioners should be prepared to argue pending motions if they ask for a case management conference. Again, I don’t see this being any different from what was already required in real-world practice. If a lawyer goes to a case management conference, he had better be ready to discuss any pending motions with the judge. Judges’ orders scheduling case management conferences have always included this requirement.

Additionally, the amendment to rule 1.440 eliminates the previous “at issue” requirement to set a case for trial and requires courts to enter an order fixing the trial period 45 days before any projected trial period in a case management order. Under the amendment to rule 1.460, motions to continue trial are now expressly disfavored under the rules, which will now provide that such motions “should rarely be granted and then only upon good cause shown.” Again, trial orders have always already included this requirement.

The amendments also alter the contours of discoverable information and align the rules more closely with the Federal Rules of Civil Procedure, as amended in 2015. For example, the Amendment to Rule 1.280 removes the phrase “reasonably calculated to lead to the discovery of admissible evidence” and in its place adds the proportionality language of Rule 26(b)(1) of the Federal Rules of Civil Procedure. This is a big change for longtime practitioners. “Reasonably calculated to the discovery of admissible evidence” as a standard for discovery is a phrase I have uttered thousands of times. That is one of those things from the old Bar exam. Whereas parties could previously obtain discovery on “any matter, not privileged, that is relevant to the subject matter of the pending action,” parties will now have to show that such discovery is “proportional to the needs of the case.” This change puts an important limit on discoverable information and gives objecting parties a new avenue to limit broad discovery requests.

As discussed above, the rules will now require initial disclosures similar to those in the Federal Rules of Civil Procedure. Within 60 days of service of the complaint or joinder, without awaiting a discovery request, parties must disclose:

-The name and contact information of each individual likely to have discoverable information, along with the subjects of that information that the disclosing party may use to support its claims or defenses;
-A copy or description of all documents or information that the disclosing party has in its possession, custody or control — or, if not in the disclosing party’s possession, custody, or control, a description by category and location of such information — that it may use to support its claims or defenses;
-A computation for each category of damages claimed by the disclosing party and a copy of the documents or other evidentiary material on which each computation is based — unless those documents are privileged or otherwise protected from disclosure; and
-A copy of any insurance policy or agreement that may satisfy all or part of a possible judgment in the action.

This requirement applies to all cases except those listed in Rule 1.200(a) and should, if complied with, streamline the discovery process. Given its breadth and potential significance to many cases, however, it is easy to anticipate confusion or noncompliance with this new requirement.

To stave off unnecessary delays, the amendments expressly state that a “party is not excused from making its initial discovery disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s initial discovery disclosures or because another party has not made its initial discovery disclosures” and that a “party who formally objects to providing certain information is not excused from making all other initial discovery disclosures required by this rule in a timely manner.”

Hopefully, this will provide litigants with the support they need to adequately — and quickly — enforce the rules.

Another important change is that, under the amendments, parties must, on their own accord, supplement or correct their discovery disclosures and responses in a timely manner if they learn that a response was materially incomplete or incorrect. Thus, all discovery requests will now be considered “continuing,” and a fact discovered after a discovery response has been served must now be disclosed immediately. Again, this used to be a clear difference between Florida and federal practice that was on the Bar exam.

Continuing with the pattern of aligning the rules with federal practice, the amendments create a new rule — Rule 1.202 — that establishes a conferral requirement for filings of nondispositive motions. Parties will be expected to confer and attempt to resolve the issues raised in a motion before reserving hearing time. Similar to what is required in many federal courts, the movant must include a certificate with the motion stating that the parties have conferred and whether the parties agreed or disagreed on the resolution of the motion. A certification stating that the opposing party was unavailable for a conference before filing the motion should describe all efforts undertaken to accomplish dialogue with the opposing party, prior to filing the motion. I don’t think this changes much. I’ve never practiced in a court that didn’t have a local rule that had the same requirement.

Finally, the amendment to rule 1.510 alters the deadline for responding to a motion for summary judgment. Whereas the nonmoving party must currently respond to a motion for summary judgment at least 20 days before the hearing, parties must now respond 60 days after being served with the motion, regardless of the hearing date. This is my favorite change, even though it will make my working life harder.

The prior rule requiring counting backwards from a hearing date (which is often not scheduled until months or years after an MSJ is filed) to figure out the due date for a response was ridiculous. I complained about it from day one. Moving parties were able to lull the other side to sleep by not scheduling a hearing right away after filing an MSJ. They were always able to, and if you read the current rule carefully, it simply means they need to set the hearing at least 40 days into the future. Doing that would give a responding party at least 20 days to get a written response filed, which would mimic the federal rule. But what moving parties would often do is not schedule a hearing after filing an MSJ for many mentions. An opposing party—especially a lawyer not getting paid by the hour, frankly—has no incentive to file a written response to an MSJ that has not been set for hearing in state court. After all, perhaps it will never be set for hearing. That happens. In which case the motion would just sit there, never ruled on by the court.

Under the current system, it would be very difficult—even for the most diligent and hardest working lawyer—to find the time to file a response to an MSJ (which is a big effort and big work product) on some random Wednesday when no hearing on the motion has been set. The current rule allows the moving party to sandbag the nonmoving party by suddenly scheduling a hearing to occur (1) less than 20 days from the date the notice of hearing is served, (2) perhaps eight or 14 months after the MSJ had been filed. In other words, although the MSJ was filed many months ago, the nonmoving party does not get notice of any hearing until 20 or less days from the date the hearing is set for. In the beginning after this rule change happened—the one that is in place now—I had to fight to get judges to understand what was happening. It is easy to read the current rule and understand how the practice should go: basically, a party moving for summary judgment, when they schedule a hearing, should not schedule the hearing for less than 40 days earlier than the date the notice of hearing is served. But many lawyers filing MSJs in the early days of the current rule would try to schedule the hearing 20 days later. That would literally require the nonmoving party to get its written response filed immediately, which, of course, is impossible, to comply with the rule that the written response must be filed at least 20 days before the hearing. Basically, under the current rule, the moving party’s lawyer has to “play fair” when it comes to scheduling a hearing. Many tried to not play fair.

When the moving party’s lawyer schedules a hearing less than 21 days after the notice of hearing is served, the nonmoving party literally cannot get a response filed in time to imply with the current rule’s requirement that the opposing memo is filed at least 20 days before the hearing. Sure, I admit that in the situation where the MSJ had been filed many months earlier, the nonmoving party could have filed the written response at any time in the past eight or 14 or whatever months, but again, that is just not normal to do in state court when there was no procedural deadline requiring it.

The way it works in federal court—and all law deadlines in general, usually even in state court—is that the nonmoving party has a certain amount of days to file a response, such as, often, 14 or 21 days in federal court and 20 days to file an answer or motion in response to a complaint or 30 days to answer discovery in state court. There is a deadline that is based on when the document to which the non-filing party is responding is filed (the due date is 14 or 21 or 30 or whatever days later), not when a hearing is scheduled.

Parties in litigation usually—except for the weird Florida MSJ rule that has been in place for a few years—do not determine response due dates by counting backwards from when a hearing is scheduled. (Going further back in Florida state court MSJ practice, before the current rule, of course, you did, but the rule was to get the response filed a mere five business days before the hearing. That was basically a rule for the benefit of the judge.)

Well, I think a lot of lawyers and judges agree with me. The new Florida rule will require a response to an MSJ to be filed within 60 days after the MSJ is filed. That rule is better because it provides certainty. The nonmoving party’s lawyer will have to do the work and get the response filed within 60 days, not let it sit while hoping the hearing is not scheduled any time soon.

The upcoming changes to the rules aim to improve the efficiency, fairness, and quality of civil litigation in Florida courts. Florida state court judges carry incredibly heavy caseloads that often limit the kind of active case management that we see in federal court. In some respects, the ability of federal courts to move cases quickly hinges on their ability to actively manage the cases on their docket by enforcing the rules. Federal judges, however, are afforded resources, such as law clerks, who assist with research and drafting orders, and magistrate judges who exercise jurisdiction over certain matters assigned by statute or delegated by the federal judges.

Most state court judges, on the other hand, do not have these luxuries. With thousands of cases and no individually assigned law clerks or magistrate judges, overburdened state court judges are often unable to dedicate the time needed to actively manage all of their cases, let alone to ensure that every rule is being properly — and timely — complied with.

Unfortunately, the amendments — which add requirements while limiting judge’s abilities to manage their dockets — will likely make their job even more challenging. As it is, it is challenging for state court practitioners to obtain timely hearing dates on pending motions, and it is even more challenging to have substantive or case-dispositive motions argued and decided before trial.

As with most of the issues concerning practicing law, what is required is professionalism. This means being proactive, staying organized, diligently managing deadlines, and eliminating gamesmanship. Much of the practice of law relies on “the honor system.” Lawyers are supposed to behave professionally and not use gamesmanship.

In the end, the biggest problem I see—again—is that state court judges will still require hearings to rule on even the simplest of motions. They will not rule on the papers without a hearing, as federal trial judges do 99% of the time. What I envision is similar to what lawyers have already experienced the past few years since many of these changes were already implemented via other avenues (e.g., judges were told via administrative order they must try a case within 18 months): frustrated judges, who will still be overburdened, will take it out on lawyers by, if not yelling at them, issuing rulings that will have to be reviewed on appeal because of clashing with the most important rule of all: substance over form is supposed to prevail. (Despite all the legalese and gamesmanship “technicality” arguing we still continue to see, the law is actually that cases are supposed to be decided based on substantive fairness.)

Maybe the changes will help, however. I do like the federal-court-like system of setting a trial early in the case, automatically. I’ve advocated this for years—or attempted to—by using the “notice for trial” allowed by the Florida state court rules under our current system. I’ve often encountered confused judges and lawyers who don’t understand the law.

The current law is that a case is “at issue” after the last pleading is filed, after which a party may file a “notice for trial.” Filing a notice for trial does not mean a party is saying the case is ready for trial and asking for the trial to start next week. “At issue” does not mean “ready for trial because discovery is completed.” Some judges have seemed, in the past, to not understand that. I have been yelled at by a judge after he set a trial to begin one month after I filed a notice for trial, when I told him the case was not ready to be tried in a month. This judge incorrectly thinks that filing a notice for trial is a representation to the court that the case is ready for trial.

The judge was the one who misunderstood the rule. I told the judge that yes, I wanted a trial date set, but perhaps one year into the future; I was trying to mimic the way it happens in federal court, using the Florida rule. I told the judge the case was ready to be set for trial, not that it was ready for the trial to begin tomorrow. State court judges have always had the power to issue trial orders setting a trial date early in a case; they should do that and set the trial 18 or 20 months into the future. The judge—wrongly—felt that filing a notice for trial was representing that the case was ready for trial to begin tomorrow.

What could have already happened under the current system—and some state court judges have started doing this—is a mimicking of what happens in federal court: a trial order is issued right away, setting the trial for 18 or 24 months into the future. The trial is set—but it is far into the future, meaning parties should rarely have an excuse for a motion for continuance when the trial date finally arrives. The trial order provides certainty and deadlines, such as the deadline for the close of discovery, and allows for management of the pretrial tasks that need to be done.

Overall, the changes to the Florida rules are a good idea, and if Florida judges and practitioners are able to implement them effectively, it will not be a bad thing for Florida litigants seeking justice in Florida’s state courts.