As a result of the Coronavirus Disease 2019 (COVID-19) pandemic on March 1, 2020, the Florida State Surgeon General and State Health Officer declared that a public health emergency exists in Florida.

On March 9, 2020, the Governor of the State of Florida declared a state of emergency for the entire state.

On March 13, 2020, the Supreme Court of Florida issued an Administrative Order which temporarily suspended criminal and civil jury trials. Several amendments to the Administrative Order have been entered with the most recent extending suspension of jury trials through July 17, 2020.

In light of the ongoing pandemic and apparent rate of infection, we anticipate that the Supreme Court of Florida will further extend temporary suspension of these proceedings.

Through Administrative Order the Supreme Court of the State of Florida has provided further authority for suspension of trials to the underlying judicial circuits, each now operating independently in their decision-making process.

As an example, most recently the 18th Judicial Circuit for Brevard and Seminole County had issued a statement on Friday, July 17, 2020 advising that jury trials were to proceed Monday, July 20, 2020. However, on Sunday, July 19, 2020, the Order was rescinded until further notice.

At this time, we know of no judicial circuit that has provided a definitive date for the resumption of jury trials.

In light of same, we are suggesting the following alternatives for your consideration.

Pursuant to Florida Statute §44.104 alternatives would include (1) non-binding Court-ordered arbitration, (2) voluntary binding arbitration, and (3) voluntary/private trial resolution.

Non-Binding or Court Referred Arbitration.

Pursuant to the Florida Rules of Civil Procedure 1.700-1.820, the trial court has the authority to refer the parties to non-binding arbitration at any time throughout the proceedings.

Upon referral, Florida Statute §44.104 directs the parties to select one or a panel of arbitrators and proceed with arbitration within dates certain.

The proceeding is generally described as short and informal. Little testimony is anticipated and the case is presented principally through argument by counsel.  Evidentiary rules are relaxed and/or don’t apply and the arbitrator may ask questions.

Following hearing, the arbitrator must issue an award in writing within ten (10) days. The arbitration award becomes binding unless appealed for trial de novo.

If no timely appeal or request for trial de novo is made, the Court then enters judgment consistent with the arbitration award. If trial de novo requested, the party appealing must obtain a verdict at least 25 percent better at trial than the underlying award. 

This, in effect, operates similarly to a Proposal for Settlement.

Voluntary Binding Arbitration.

In this scenario, the parties would agree to binding arbitration selecting either one or a panel of arbitrators and proceed with arbitration within dates certain.

The arbitrator or panel has authority over the entire process to include discovery, issuance of subpoenas and conduct of the hearing.

The Rules of Evidence do apply, however, likely not as strictly enforced as with jury trial.

The arbitration award is binding and subject to limited grounds for appeal.

The grounds for appeal primarily relate to the failure of the arbitrators to comply with applicable Rules of Procedure or Evidence, partiality or misconduct of an arbitrator prejudicing the rights of any party, or an award which reaches an unconstitutional result.

The “Harmless Error Doctrine” applies to these appeals.

Typically, we suggest the parties enter into a high/low agreement for purposes of binding arbitration. This particularly serves as an incentive for all parties when the matter has been carefully evaluated with regard to exposure and policy limits.

The prevailing parties’ rights to attorney’s fees is a substantive issue.  Entitlement and amount must be decided by the Court not arbitrator, unless the parties waive judicial determination and stipulate that those issues are before the arbitrator. If no waiver/stipulation, the arbitration award must specify the claims on which each party prevailed for purposes of determination as to attorneys’ fees.

A previously filed Proposal for Settlement would apply similarly to trial and arbitration.

Voluntary/Private Trial Resolution.

Florida Statute §44.104 also provides for this form of alternative dispute resolution.

With very few limitations the private trial procedure is virtually unlimited in scope.  The designated private judge has almost all the powers of a circuit court judge and final judgment is fully enforceable.

In a private hearing/trial, due to the dramatically reduced case load, the judge’s day is typically fully available. 

The parties would incur the cost of compensation of judge and jurors as well as the necessary facilities.

This cost however would likely be offset by swift resolution and avoidance of unnecessary delays or continuation of proceedings as well as reduced risk of losing witnesses or dealing with their unavailability.

Our office has a successful record of concluding matters through the alternative method of non-binding and binding arbitration. Our success is based upon the preparation and presentation of evidence and argument similar to jury trial. To date, all results have been within or less than our recommended range of settlement value.

Not all matters would be appropriate for alternative dispute resolution and case by case analysis is necessary. With binding arbitration, the existence and agreement to a high/low award is typically essential to obtaining the agreement of opposing counsel.

In addition to our Firm’s ability to defend or prosecute claims through these alternative means, several of our attorneys serve as Court appointed arbitrators as well.

We would welcome the opportunity to participate in a virtual conference with you to provide further detail and answers to any questions you may have.

RK Trial Team