Federalizing Fla.'s State Court Swamp—Big Changes Are Coming to State's Civil Litigation

Daily Business Review

Authored Article


Litigating in Florida state court can be a slog. Cases move slowly, discovery can be a hassle, and scheduling is sometimes a headache. Yet judges aren’t to blame—Florida trial courts are overloaded and under-resourced.

The Florida Supreme Court wants to change that. Just weeks ago, the court signaled that big changes—and perhaps even a resource infusion—are on the horizon. This article unpacks those changes and what they mean for litigants and their lawyers. In short: Faster cases, better discovery, and less flexibility. That all comes with a swamp-sized caveat though—without a resource boost, the biggest efficiency boosts might be off the table.

Florida Civil Practice Today—Slow and Swampy

Florida courts face a double-edged sword. On one side, Florida trial courts are drowning in cases—according to a recent U.S. Chamber of Commerce analysis, Florida courts handle more tort litigation on a per capita, dollar-for-dollar basis, than any other state. COVID only exacerbated things, with state judicial officials estimating that the pandemic saddled Florida courts with nearly a million extra cases. On the other side of the sword, the state judiciary is under-resourced. For instance, in a 2009 Florida Bar report, state clerks bemoaned “their lack of resources,” and urged that they could “no longer handle all their court-related duties.”

The Florida Supreme Court Steps In

Enter the Florida Supreme Court. In, 2019, the court created the Workgroup on Improved Resolution of Civil Cases (the Workgroup), which was tasked with “examining Florida’s laws, rules of court, and practices … to determine whether changes can be made to improve the resolution of civil cases.” That effort culminated in a final report of findings and recommendations (the Final Report), which the court took under advisement.

The 330-page Final Report proposed massive amendments to the Florida Rules of Civil Procedure. Some of the biggest changes included a new case management approach (which sorted cases into one of three tracks keyed to a case’s complexity), required case management conferences and joint reports, mandatory discovery disclosures, a reworked sanctions regime, and revamped motion practice with a focus on fewer hearings and faster resolution. In short, the Workgroup’s goal was to speed things up.

Yet not everyone saw the same end. Across Florida, members of the bench and bar submitted comments, many urging caution. Their punchline: While laudable, the proposed changes might backfire, at least without more financial resources. Comments from the Fourth Judicial Circuit summed up this concern: “Unfortunately, we believe that many of the proposed rules will substantially delay the management and resolution of civil cases. Though the intent is to expedite cases, the inflexibility and complexity of the proposed rules—compliance with which is impossible at current staffing levels—may well have the opposite effect. As justice delayed is justice denied, we strongly advise that the proposed rules not be adopted … .”

In January, the court finally chimed in, agreeing in part. While the court tabled the proposed changes, it reaffirmed its commitment to modernizing state court practice. In so doing, it referred the proposed changes to various Florida Bar committees for “additional refinements.”

The court’s referral letters hint at the changes it is especially interested in implementing. Among those, some of the biggest include:

  • Differentiated case management tracks.
  • Eliminating the thorny “at issue” requirement for trials and instituting a presumptive fixed trial date certain.
  • Requiring federal-style initial discovery disclosures.
  • Mandatory discovery supplementation (in Florida, discovery rarely requires supplementation, unlike in federal court).
  • Cabining trial courts’ discretion to continue trials.

If this seems like federalization, that’s because it is—the court tied many of these modifications to “the relevant aspects of Federal Rules of Civil Procedure 26.” At the same time, the court acknowledged commenters’ resource concerns, asking the state Trial Court Budget Commission to “develop a legislative budget request for the resources necessary to successfully implement these … measures.” And the court isn’t wasting any time—it asked the various bar committees to issue their reports by July 2023.

So What?

What does this all mean for the future of civil litigation in Florida? Like most legal answers, it depends. On paper, three big changes are possible: better discovery, faster resolution and less flexibility.

Better discovery. Requiring initial disclosures and automatic discovery supplementation should streamline discovery. Under the current rules, state court litigants don’t need to turn over anything unless prompted through affirmative discovery. That often creates delay, especially when accounting for discovery fights. Automatic disclosures could short-circuit some of that. Likewise, forcing litigants to supplement their discovery responses could cut down on discovery gamesmanship and expensive late-stage discovery.

Faster resolution. On its face, this revamp promises to speed up case resolution too. As things sit, parties regularly battle over whether a case is “at issue,” i.e., ready for trial, since most Florida courts don’t set a trial date from the outset. Under the new rules, courts would place cases on a track theoretically tied to a case’s complexity—simpler cases get to trial faster; complex cases take longer. Courts, too, could need to institute a presumptive trial date certain. Along with that, courts would also have less flexibility to push back trials. Add it all up, and you get faster time-to-trial—in theory. The devil, of course, is in the details.

Less flexibility. These planned efficiency gains would come with a cost, though—less flexibility. The court is interested in cabining trial courts’ discretion to continue trials. By extension, litigants would get less breathing room too. Litigants who don’t plan ahead might find themselves down trial preparation creek without a paddle.

This all comes with a giant caveat—funding. Without an injection of resources, Florida trial courts could struggle to enforce these new obligations. State trial courts lack many of the resources their federal counterparts enjoy including law clerks, more support staff, and smaller dockets. While certain changes, like loosening motion practice rules (e.g., allowing trial courts to decide more motions on the papers), could speed things up even without additional funding, more resources would still unlock the strongest efficiency gains.

At bottom, Florida civil litigation is set for a seismic shift. Just how seismic depends, in part, on whether the Florida Legislature boosts the state judiciary’s budget line. But even if it doesn’t, big changes are on the horizon. Those changes are likely to reward savvy litigators and their clients. On the flip side, unwary parties could find themselves with the short end of the discovery and trial preparation stick. Stay tuned.

Republished with permission. This article, "Federalizing Fla.'s State Court Swamp—Big Changes Are Coming to State's Civil Litigation," was published by the Daily Business Review on February 17, 2023.