Division 58 Procedures Fla. R. Jud. Admin (b) requires the trial judge take charge of all cases at an early stage in the litigation and shall

Transcription

1 Division 58 Procedures Fla. R. Jud. Admin (b) requires the trial judge take charge of all cases at an early stage in the litigation and shall control the progress of the case thereafter until the case is determined. That same rule requires the judge to control the pace of the litigation by controlling the calendar, identifying priority cases, implementing docket control, identifying cases subject to alternate resolution, developing rational and effective trial setting practices. The procedures in this document implement that requirement. We hope these are rational. The parties are in the best position to advise the court on many of the trial planning details such as discovery and witness availability. The court relies on the parties and their attorneys to identify issues in a timely fashion and bring them to the court for resolution. This document does not purport to create or override and procedural rule adopted by the Florida Supreme Court or applicable within the 7 th Circuit, or any substantive law established by the People of the State of Florida in either the Constitution of the State of Florida or the lawful enactments of the legislature. These Procedures are written more informally than most. The lack of formality does not imply the court does not take the process or the law seriously. To the contrary, the court has deep reverence for the law, respect for the parties and the sincere concern for the merits of every case. 1. CASE MANAGEMENT. We use a positive case management model in St. Johns County. We have case management hearings every two weeks. Typically you will have one scheduled about days after your case is filed. We use these to discuss the issues, decide on mediators, review discovery progress and handle simple discovery issues. For example if there is one document the two parties disagree upon, please raise it in Case Management. If you are not ready to discuss it raise the issue so we can set a hearing. If the other side is being stubborn, raise it. If the other side is being cooperative let the court know. Bring any issue that bears on the orderly management of the case to the court s attention. We will either resolve it or set it for hearing. If you are the petitioner or represent the petitioner, the court will ask you to introduce to the parties, the children (if any) and the issues in the Petition at the first case management. You can typically expect at least 2 case management hearings before we set for trial. Then you will have a pre-trial which is also a case management hearing. Some matters are fully resolved at case management. We use it as a partial substitute for the ex parte hours that many other courts employ to handle routine matters. You cannot set a substantive hearing at case management. There isn t enough time. Case Management scheduling is handled by the Family Law Case Manager. Please contact her to make changes to the schedule. Motions to continue case management must be filed at least 2 business days before case management. Case Management is Wednesday in most cases that means you must file by about noon on Monday to allow the motion to get through the e-portal. Life happens, emergencies occur, day care closes or your child has the flu let the Court know and we will accommodate. Call the other side and see if they consent. Consent cures everything!

2 2. PLEADINGS, PAPERS: The Clerk s record in Benchmark (St. Johns County) is the only official record in your case. If a document is not in the docket, it isn t properly before the court. The switch to electronic filing has been a blessing and curse. It is wonderful to have the whole file available to prepare for hearings, prepare judgments and orders and to manage cases. The court and the clerk have procedures to bring certain matters to the court s attention on an immediate or expedited basis. It is almost always unnecessary, therefore, to call or chambers to inform the court of a filing. In the case of genuine emergency, however, a call to chambers can be helpful to alert the court to an emergency filing. When you call the JA, however, all the JA can do is alert the judge to the filing. It is improper to attempt to discuss the case with the JA or present an ex parte view of the evidence. Please don t do this. There was a tradition to provide the court with paper copies of certain filings as a courtesy. There is no need to do this. It wastes paper and client funds. It also can lead to duplicate effort and duplicate orders. If the court needs a paper copy, we will let you know! The Seventh Circuit has addresses for chambers to allow for electronic submission of proposed orders. Ours is division58@circuit7.org. The policy and procedure for using that address is in this document. It is a special one-way mailbox. It receives mail but cannot send mail. It is not an online forum or online hearing center for the attorneys to engage in argument about proposed Orders. Since the judge cannot reply, any such argument will be deleted it s the only option. 3. EX PARTE CALLS: It is highly improper to communicate with the court on an ex parte basis without specific legal authority. For example, emergency child pick up orders are typically handled ex parte because of the emergency situation. If you send up an emergency motion, you need to be ready to prepare an emergency order. Don t file an emergency motion then leave the office for a few days. Your emergency starts looking a lot less emergent. Review case law on emergency matters that can be handled ex parte there aren t many conditions that meet the standard. 4. PROPOSED ORDERS; CONSENT ORDERS; and ORDERS YOU DON T LIKE BUT THE COURT REQUESTED: If we had to have a hearing on everything that comes before the court, we would need a lot more judges or magistrates. If the court had to write every order the same would be true! If you have a proposed order (typical in uncontested divorces, probate matters, agreements about discovery) then the two attorneys (or the two parties) have a few options: a. Bring the Order to case management and ask the court to sign and enter it. b. the Consent Order to division58@circuit7.org with the subject line that reads Consent Order/Judgment DR 16-XXXX ([Party name] v. [Opposing party name]). You must copy (not blind copy) all other parties. State in the body of the that the parties consent as evidenced by their signature. If the matter requires substantive relief you must have the parties signatures. If the issue is procedural or related to discovery, the attorneys signatures are sufficient. It the issue is a continuance Fla. R. Jud. Admin (e) REQUIRES the party

3 to sign the request; it is good practice to have them sign the consent as well as it protects everyone s interests! If the court asks you to prepare an order based on oral pronouncement, there is a different process. The appeals courts recognize that asking the parties to prepare a proposed order can be efficient. It raises all kinds of problems as well. In order to avoid those problems the following procedures will apply: a. All orders need to be sent to the court in either MS Word (.doc or.docx format) or as an RTF (rich text file) format so that the court can edit it as needed. PDF is not acceptable. It cannot be edited easily. b. Send the proposed order to the other party at their designated service address first. The other party gets 3 working days to consent or propose changes. Note that we did not list ignoring your as one of the options. If by close of business on the third full working day after you served the proposed order, you have not heard back you may submit your proposed order. c. The header of the shall read Proposed Order/Judgment DR 16-XXXX Judgment DR 16-XXXX ([Party name] v. [Opposing party name]). d. The body of the must contain one of the following: Opposing party [Name here] CONSENTS; Opposing Party Disagrees and will submit their own proposed order within 24 hours; or, Opposing party did not respond to my request for approval of the proposed order within 3 business days. Note that submitting a proposed order is not an opportunity to open an online discussion between the parties about the Order. The discussion, if any, must be in the written proposed order. Clearly identify in your proposed order what the other side wants and what you want. Submission of a proposed order after court instructions is not an opportunity for reconsideration or rehearing. It is improper to change the court s oral pronouncements in such a proposed order. If there is disagreement about the oral pronouncement file the appropriate Motion. There s no need for conforming copies unless you really want one. We electronically file orders and the copies are online within hours of the court filing. 5. SCHEDULING HEARINGS; TRIALS: This Division uses Benchmark for calendaring. If you don t have an account, contact the clerk. Benchmark, like any other computer program, requires some patience and experience. We currently do not allow direct scheduling by attorneys like the civil divisions do. You need to the JA to get a hearing. These are the procedures. HEARINGS a. Call the opposing party and try to resolve the matter without hearing. b. Determine how much time you both need. Remember that cross examination comes out of the time allocated to the party doing the cross examination. If you schedule a 30 minute hearing each side gets 15 minutes. If you use 15 minutes crossing the other side you have used up all of your time.

4 c. Review Benchmark for open hearing times. Coordinate those times with opposing counsel. Once you agree on a time the JA. d. The JA will review to see if the time you coordinated is still available. If it is then you will be told to prepare a notice. In the absence of other instructions, the party filing the Motion should do the notice. e. Please don t engage in protracted one-way calls to set up the hearing. This ties up the JA unnecessarily. If you need to call about scheduling get the other side on the phone first THEN conference in the JA. f. Once you set a hearing and provide notice it may only be cancelled by consent of the parties or by a complete resolution of the issue set for hearing. If the party filing the motion wishes to withdraw and dismiss the motion with prejudice they may do so and cancel the hearing. g. Parties may not cross-notice hearings without coordination. Hearing are set based on the time needed for the noticed matter. Cross notice without coordination will be deemed ineffective. TRIALS Trials are another process. The court sets the trial after a case management. We will tell you at case management when we expect you will have a trial (usually a 2 month range). You need to tell us how long you need (see above regarding time). Attorneys and parties should file a Notice of Unavailability covering the times they are currently unavailable in months we have told you to expect a trial. Let us know if you have a trial date in another court, are on vacation (these are good and important things), a scheduled medical procedure (also good and important), or other planned event. Recently an attorney files a three-month Notice of Unavailability with no reason. It was not honored as it gave no reason for such a protracted delay. a. The JA will set two trial dates the definite date and the tentative date. On the tentative date your trial is the alternate to someone else s definite date. If their case settles and we have more than 14 calendar days to notify you, your trial will be moved up. b. Please note that a trial longer than 2 days requires the court to rearrange a substantial amount of other matters. Therefore it will take longer to get to your trial. c. Please review the pre-trial order carefully as it has many deadlines tied to the trial and pre-trial dates. You have to be ready to try the case on the tentative date as well as the definite date. d. Occasionally we will cancel a tentative date. You can ask for this. If you prefer only the definite date, please inform the court. 6. JUDGE McGILLIN S TIPS, TRICKS AND PET PEEVES: a. One person speaks at a time.

5 b. Don t interrupt anyone in court (except to say OBJECTION ). If you aren t objecting it s rude, disrespectful to the parties, witnesses, attorneys, the court and process. c. When you state an objection, simply say Objection and the nature hearsay and wait for the judge to ask for more. Please note that that s not true is NOT found anywhere in the evidence code as an objection. That sounds a lot like argument which is reserved for the part of the case called Argument. d. Don t argue about arguing - It wastes everyone s time. State your point and state your objection. You really shouldn t be surprised that the other adversary in a trial disagrees with you. e. Use moral outrage sparingly. Every case is not Brown v. Board of Education. This isn t the Supreme Court although your case might make it there. By the same token, we understand that the trial is, for most, their only day in court. It is important to the parties! The trial court s job is to get the facts right and apply the law. Focus on those. f. Cite to specific authority. If there s a statute, case or rule that grants you the relief you are requesting, cite to it. g. Ask for what you want. Remember to close your case asking the judge what you want. h. If you have case law, bring copies for everyone. If you highlight passages, everyone gets a highlighted version. i. If you are asked to file a brief, please remember the title of the document implies its length brief. j. Get your exhibits pre-marked by the clerk. It takes up time that you don t have to wait for the clerk to mark the exhibit. For trials you must follow the pre-trial order which tells you to have them marked 2 working days before the trial. Don t staple your exhibits they have to go through a scanner. Bring copies for the other parties. Binders can be helpful if you have a huge stack of paper. k. People have their whole life on their cell phone. Often they have important pictures or text messages and that you want to use as evidence. Parties don t appreciate it when we have to seize a cell phone to take it into evidence. If you want the court to consider the evidence on the phone, use screen shot to take a picture, print it and bring it along. l. No one appreciates it when your cell phone rings in the middle of their trial. Cell phones must be off or on silent. Note that AMBER ALERT and CODE RED events now override silent and ring anyway. m. Listen to the bailiff. They are the ones wearing sidearms.. n. Attorneys - Remember that your client, the parties and the witnesses are nervous. Coming to court is a big deal. It is a big day for them and their family. Remember how nervous you were the first time you came to court and multiply that several times over.

6 o. Non-Attorneys we know you are nervous! Ask questions if you aren t sure what to do, where to stand, but remember the judge and court staff cannot give you legal advice. p. Learn how to use the courtroom technology before trial. We have 90 TV screens to view evidence, videos, etc. Hardly anyone uses them.. q. Prepare.. r. Communicate. s. Cooperate where you can be respectful when you cannot. t. The other side is not evil; they don t usually have evil motives. Whether a lawyer, a party or a witness, they probably have a mother and father who is proud of them, a spouse that loves them and kids that look up to them. You disagree with them you don t hate them. Wish them happy birthday, happy new year; express condolences when life happens; treat them the way you want to be treated. The process is adversarial not the people. This is a human system. By definition it is imperfikt. We are all imperfect and all make mistakes. It s the court s job to listen to what you have to say and give everyone a fair hearing. When (notice not if but when) a mistake is made please bring it to the court s or the parties attention and ask for correction. If they don t correct it, file a motion or an appeal. This is your court system we operate under both federal and state Constitutions that start off saying We the People. Division 58 is here to serve the people. If you have suggestions how to improve our processes or this document please those to division58@circuit7.org.