Below are the published amendments to the Florida Rules of Civil Procedure, effective January 1, 1997, cited at 21 Florida L. Weekly S489 (the "New Rules"). Pursuant to these amendments, some rules of procedure, which we have all become quite comfortable with and relied upon, are being altered. As such, set out herein is a detailed analysis of the rules that have been modified, and the possible effects that such modifications may have on our practice in defending the causes of action filed against your company. This analysis represents an overview of some of the new rules only and does not specifically refer to each and every situation that you might have before you presently, or in the future. In light of this, as always, we remain ready, willing, and able to field your inquiries regarding specific fact scenarios that these amendments might affect in the future.
I.Rule 1.070 Process - Defendants may now be served with the complaint or process by way of certified mail. Acceptance of service by mail does not waive, however, any objections to the venue or the jurisdiction of the court over the individual person, company or defendant. The manner is which service will be provided by mail is as follows:
Plaintiff shall notify defendant of the commencement of an action and request the Defendant waive service of the summons and complaint. This notification shall be by notice and shall incorporate the same information which is normally provided by summons. Upon receipt of the waiver, the defendant must comply with the request to waive personal service within twenty (20) days. If the defendant fails to waive personal service, the court may impose the costs necessary for service of the summons with the complaint subsequently incurred by the Plaintiff, unless the defendant shows good cause for failure to accept the waiver. As such, the defendant must respond to the waiver within twenty (20) days by returning the signed waiver to the Plaintiff. Thereafter, the defendant does not have to respond to the Complaint until sixty (60) days from the date the request for waiver of service was received. Sixty (60) days will be computed by the return receipt from the certified mail.
II.Rule 1.280 General Provisions Governing Discovery: (Trial Preparation: Experts) - As we all know, previously attorneys would request certain information regarding experts who would be testifying to liability issues and the amount of damages that would be allegedly due and owing to a Plaintiff. Experts would testify on both sides regarding liability issues and compensatory amounts to which the Plaintiff claimed to be entitled. Thereafter the trier of fact or jury would resolve the liability and damage issues. Often, the amount the Plaintiff would by awarded, if liability was shown, resulted from information imparted by the expert who was most believable to the jury. In an effort to persuade the jury that the adversary's expert was testifying based primarily upon financial considerations resulting in bias, trial counsel frequently asked many financial questions of the expert. These were often objected to as privileged by the other party's counsel. These types of questions focused on the amount of work that the expert had previously performed for trial purposes, the amount of money the expert was paid for preparing for trial and testifying, and the amount of work the expert did for attorneys as compared to the total amount of business conducted in his professional practice as a whole.
In an effort to strike a balance between the right to discovery and the expert's right to privacy in financial affairs, the New Rules provide that a party may obtain financial discovery regarding any person disclosed as an expert, via written questions. The rule states specifically that the following information shall be provided upon request:
- 1.the scope of employment in the pending case;
- 2.the compensation for such service to the expert;
- 3.the percentage of work performed within a reasonable time period for Plaintiffs and Defendants in other cases in which the expert has testified by deposition or at trial; and
- 4.an approximation of the portion of the expert's involvement as an expert witness based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness.
However, the New Rules specifically state that an expert may be required to produce financial and business records only under unusual or compelling circumstances. The Rules do not state what these unusual or compelling circumstances are. This may well be a fertile area for future appeals.
Certainly these New Rules will alter decisions regarding choice of experts. A Defendant's use of the same expert time and time again will more likely result in the showing of bias to a jury (even by less experienced plaintiff's counsel), potentially expanding on the amount of damages awarded to a plaintiff. As such, our clients must seek to find new experts to use on a revolving basis and be sure to prepare our experts well on these areas on inquiry.
III. Claims of Privilege or Protection of Trial Preparation Materials: - As an insurance carrier and/or service provider who is self insured, you as a company have likely made your own internal investigative reports regarding the particular incidents which have occurred giving rise to the lawsuit being defended. When investigative reports were requested for production in the past, objections have been asserted based on work product and the reports were generally found to be privileged, more often than not, by the court. Pursuant to the New Rules, when a party withholds information otherwise discoverable by claiming privilege, the party making the claim shall describe in a log the nature of the documents, communications or things not produced or disclosed, in a manner that without revealing information itself which is privileged or protected, will enable other parties to assess the applicability of the claimed privileges.
Our understanding of this new sub-part of Rule 1.280, reveals that the courts are becoming more lenient to overcoming privilege which is claimed in preparation for trial, or pursuant to internal investigations of actual incidents. Although this provision fails to extinguish privileges, the New Rules do limit our ability to withhold work product based upon privilege. As such, we advise that in the future you should keep in mind when documenting investigations of claims, to make every effort to limit any potential admissions of liability, or any language which may be construed by an adversary assessing such materials.
IV.Rule 1.442 Proposals for Settlement: - The new "proposal of settlement" rule does little more than simple change the time requirements by which <>offers of judgment can be made.
As you know, Offers of Judgment protect your right to attorney's fees and court costs from the time of the offer if the "judgement obtained" is not at least 25% more than the offer. Offers not accepted within 30 days are deemed rejected. Similar rules apply to Demands for Judgment by plaintiffs.
Beginning January 1, 1997, under the New Rules a proposal to a Defendant shall by served no earlier than ninety (90) days after service of process on the Defendant, and the proposal to a Plaintiff shall be served no later than ninety (90) days after the action has been commenced. Further, no proposals shall be permitted later than forty-five (45) days before the date set for trial, or the first day of a trial docket, whichever is earlier. As such, it will no longer be prudent to wait until after mediation in order to serve an Offer of Judgement. Therefore, beginning after the ninety (90) day period during which we will analyze each case in orderto promptly analyze the amount of an Offer of Judgment, consideration must be given to immediately serving a proposed Offer of Judgment and further to be alert to not serve an Offer for Judgment any later than the filing of a Notice for Trial by either party. As you know, as Notice of or Trial can be served as early as the close of the pleadings.
Although this correspondence highlights the most divergent changes in the New Rules, there are other rules which are being amended. We will advise you of those as they become pertinent to a particular case issue. If you have any questions regarding any other particular procedural rule, of if you wish to discuss these particular rule changes further, please do not hesitate to contact us at your earliest convenience.