Friday, March 11, 2011

WHAT WILL YOU DO IF THE COURTS CLOSE? (or if you can’t get a reasonable trial date)

By Retired Circuit Judge Paul Siegel
The Daily Business Review, on Friday March 4, 2011, reported:
 “Florida state courts could be forced to shut down April 1 and furlough staff and judges if a budget shortfall caused by a drop in foreclosure filing fee revenue isn’t addressed by the Legislature, Miami-Dade Circuit Chief Judge Joel Brown said Thursday.” 

A solution for some cases is a private trial under section 44.104 of the Florida Statutes. The provisions were inserted into the statutes effective October 1, 1999 and have been used very little since. A private trial is referred to as a “Voluntary Trial Resolution” and a private judge as a “Trial Resolution Judge.” 

The private trial system is invoked when consenting civil litigants stipulate to use it. Their case is then tried before the Trial Resolution Judge, following the Florida Evidence Code and, presumably, the Florida Rules of Civil Procedure. At the conclusion of the trial the Trial Resolution Judge (or the jury if the parties so elect) renders a written decision. That decision is then delivered to the Circuit Judge in whose division the case falls; without modification, the Circuit Judge enters a final, enforceable judgment on the private judge’s decision. The final judgment can then be appealed to one of the District Courts of Appeal. The Trial Resolution Judge’s factual findings are not subject to review. The parties share the charges of the judge, those of a privately retained jury and, if needed, a hotel conference room which can function as a courtroom. 

The private trial system is likeliest to be employed by commercial litigants who will benefit by knowing the outcome of their lawsuit for business planning purposes. It has limited applicability in family cases because by statute it cannot be used when the divorcing couple has minor children. However, for very wealthy or prominent childless couples, it can provide the benefit of a private trial so their finances and peccadilloes are not spread on the public record. 

Some of the benefits of a private trial in addition to privacy include the ability to choose the trial judge (sometimes referred to as forum shopping), obtaining a far faster conclusion to the litigation, not having to wait three months for a summary judgment hearing, and the potential for saving considerable amounts of money for litigants who are charged for repeated and cumulative trial preparation as the case moves from one trial calendar to another. The fastest way to access the statute and the limited case law decided under it is by visiting the web site


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