Senate Bill 0942c1

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    Florida Senate - 1998                            CS for SB 942

    By the Committee on Judiciary and Senator Campbell





    308-2086-98

  1                      A bill to be entitled

  2         An act relating to litigation reform; providing

  3         for expedited trials; providing timeframes for

  4         the conduct of such trials; creating s. 40.50,

  5         F.S.; providing for instructions to juries

  6         after the jury is sworn in; providing for the

  7         discussion of evidence under certain

  8         circumstances; providing for the taking of

  9         notes under certain circumstances; providing

10         for notebooks; providing for written questions;

11         providing for final instructions; creating s.

12         44.1051, F.S.; providing for voluntary trial

13         resolution; providing for the appointment of a

14         trial resolution judge; providing for

15         compensation; providing for fees; providing for

16         the tolling of applicable statutes of

17         limitation; providing for powers of trial

18         resolution judges; providing for hearings and

19         evidence; providing for appeal; providing for

20         application; amending s. 57.071, F.S.;

21         providing criteria under which expert witness

22         fees may be awarded as taxable costs; amending

23         s. 57.105, F.S.; providing sanctions for

24         raising unfounded claims or defenses; providing

25         exceptions; providing for damages in certain

26         circumstances; amending s. 627.428, F.S.;

27         revising a provision relating to attorney's

28         fees to exempt certain actions; amending s.

29         768.77, F.S.; revising provisions with respect

30         to itemized verdicts to delete reference to

31         future damages; amending s. 768.78, F.S.;

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  1         conforming to the act; conforming a

  2         cross-reference; amending s. 768.79, F.S.;

  3         providing for the applicability of offers of

  4         judgment and demand of judgment in cases

  5         involving multiple plaintiffs; providing that

  6         subsequent offers shall void previous offers;

  7         providing that prior to awarding costs and fees

  8         the court shall determine whether the offer was

  9         reasonable under the circumstances known at the

10         time the offer was made; authorizing the court

11         to consider whether or not a proposal was

12         reasonably rejected when considering

13         entitlement to and the amount of an award of

14         attorneys' fees; providing severability;

15         providing an effective date.

16

17  Be It Enacted by the Legislature of the State of Florida:

18

19         Section 1.  Expedited trials.--Upon the motion of any

20  party to a simplified civil proceeding or upon the joint

21  stipulation of the parties to any civil case, the court may

22  conduct an expedited trial as provided herein. A simplified

23  civil proceeding is a case involving only two parties, no more

24  than two counts to the complaint or counter claim, and where

25  the court finds there would be no prejudice to any party in

26  conducting an expedited trial. Where two or more plaintiffs or

27  defendants have a unity interest, such as a husband and wife,

28  they shall be considered one party for the purpose of this

29  section. Unless otherwise ordered by the court or agreed to by

30  the parties with approval of the court, an expedited trial

31  shall be conducted as follows:

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  1         (1)  All discovery in the trial shall be completed

  2  within 60 days.

  3         (2)  All interrogatories and requests for production

  4  will be served within 10 days and all responses will be served

  5  within 20 days of receipt.

  6         (3)  The court shall determine the number of

  7  depositions required.

  8         (4)  The case may be tried to a jury.

  9         (5)  The trial of the case will be tried within 30 days

10  after the 60 day discovery cut-off.

11         (6)  The trial will be limited to 1 day.

12         (7)  The jury selection will be limited to 1 hour.

13         (8)  The plaintiff will have 3 hours to present its

14  case including opening, all testimony and evidence, and

15  closing.

16         (9)  The defendant will have 3 hours to present its

17  case including opening, all testimony and evidence, and

18  closing.

19         (10)  The jury will be given "plain language" jury

20  instructions at the beginning of the trial as well as a "plain

21  language" jury verdict form. The jury instructions and verdict

22  form will be agreed to by the parties.

23         (11)  The parties will be permitted to introduce a

24  written report of any expert and the expert's curriculum vitae

25  instead of calling the expert live at trial.

26         (12)  At trial the parties may use excerpts from

27  depositions, including video depositions, regardless of where

28  the deponent lives or whether they are available to testify.

29         (13)  Except as approved by the court, the Florida

30  Evidence Code and the Florida Rules of Civil Procedure will

31  apply.

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  1         (14)  A unanimous jury verdict is not necessary to

  2  resolve the case. A vote of 5-1 is sufficient.

  3         (15)  There will be no continuances of the trial absent

  4  extraordinary circumstances.

  5         Section 2.  Section 40.50, Florida Statutes, is created

  6  to read:

  7         40.50  Jury duty and instructions in civil cases.--

  8         (1)  In any civil action immediately after the jury is

  9  sworn, the court shall instruct the jury concerning its

10  duties, its conduct, the order of proceedings, the procedure

11  for submitting written questions of witnesses, and the

12  elementary legal principles that will govern the proceeding as

13  provided herein.

14         (2)  Jurors shall be instructed that they will be

15  permitted to discuss the evidence among themselves in the jury

16  room during recesses from trial when all are present, as long

17  as they reserve judgment about the outcome of the case until

18  deliberations commence. Notwithstanding the foregoing, the

19  jurors' discussion of the evidence among themselves during

20  recesses may be limited or prohibited by the court for good

21  cause.

22         (3)  The court shall instruct that the jurors may take

23  notes regarding the evidence and keep the notes for the

24  purpose of refreshing their memory for use during recesses,

25  discussions, and deliberations. The court may provide

26  materials suitable for this purpose. The confidentiality of

27  the notes should be emphasized to the jurors. After the jury

28  has rendered its verdict, the notes shall be collected by the

29  bailiff or clerk who shall promptly destroy them.

30         (4)  The court shall provide a notebook for each juror.

31  Notebooks shall contain:

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  1         (a)  A copy of the preliminary jury instructions,

  2  including special instructions on the issues to be tried.

  3         (b)  Jurors' notes.

  4         (c)  Witnesses' names, photographs and/or biographies.

  5         (d)  Copies of key documents admitted into evidence and

  6  an index of all exhibits in evidence.

  7         (e)  A glossary of technical terms.

  8         (f)  A copy of the court's final instructions.

  9

10  In its discretion, the court may authorize documents and

11  exhibits in evidence to be included in notebooks for use by

12  the jurors during trial to aid them in performing their

13  duties. The preliminary jury instructions should be removed,

14  discarded, and replaced by the final jury instructions before

15  the latter are read to the jury by the court.

16         (5)  The court shall permit jurors to have access to

17  their notes and notebooks during recesses, discussions, and

18  deliberations.

19         (6)  The court shall permit jurors to submit to the

20  court written questions directed to witnesses or to the court.

21  Opportunity shall be given to counsel to object to such

22  questions out of the presence of the jury. The court may, as

23  appropriate, limit the submission of questions to witnesses.

24         (7)  The court shall instruct the jury that any

25  questions directed to witnesses or the court must be in

26  writing, unsigned, and given to the bailiff. The court may

27  further instruct that, if a juror has a question for a witness

28  or the court, the juror should hand it to the bailiff during a

29  recess, or if the witness is about to leave the witness stand,

30  the juror should signal to the bailiff. If the court

31  determines that the juror's questions calls for admissible

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  1  evidence, the question may be asked by court or counsel in the

  2  court's discretion. Such question may be answered by

  3  stipulation or other appropriate means, including, but not

  4  limited to, additional testimony upon such terms and

  5  limitations as the court prescribes. If the court determines

  6  that the juror's question calls for inadmissible evidence, the

  7  question shall not be read or answered. If a juror's question

  8  is rejected, the jury should be told that trial rules do not

  9  permit some questions to be asked and that the jurors should

10  not attach any significance to the failure of having their

11  question asked.

12         (8)  The court has discretion to give final

13  instructions to the jury before closing arguments of counsel

14  instead of after, in order to enhance jurors' ability to apply

15  the applicable law to the facts. In that event, the court may

16  wish to withhold giving the necessary procedural and

17  housekeeping instructions until after closing arguments.

18         Section 3.  Section 44.1051, Florida Statutes, is

19  created to read:

20         44.1051  Voluntary trial resolution.--

21         (1)  Two or more parties who are involved in a civil

22  dispute may agree in writing to submit the controversy to

23  voluntary trial resolution in lieu of litigation of the issues

24  involved, prior to or after a lawsuit has been filed, provided

25  that no constitutional issue is involved.

26         (2)  If the parties have entered into an agreement that

27  provides for a method for appointment of a member of The

28  Florida Bar in good standing for more than 5 years to act as

29  trial resolution judge, the court shall proceed with the

30  appointment as prescribed.

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  1         (3)  The trial resolution judge shall be compensated by

  2  the parties according to their agreement.

  3         (4)  Within 10 days of the submission of the request

  4  for binding voluntary trial resolution, the court shall

  5  provide for the appointment of the trial resolution judge.

  6  Once appointed, the trial resolution judge shall notify the

  7  parties of the time and place for the hearing.

  8         (5)  Application for voluntary trial resolution shall

  9  be filed and fees paid to the clerk of the court as if for

10  complaints initiating civil actions. The clerk of the court

11  shall handle and account for these matters in all respects as

12  if they were civil actions except that the clerk of the court

13  shall keep separate the records of the applications for

14  voluntary binding trial resolution from all other civil

15  actions.

16         (6)  Filing of the application for binding voluntary

17  trial resolution will toll the running of the applicable

18  statutes of limitation.

19         (7)  The appointed trial resolution judge shall have

20  such power to administer oaths or affirmation and to conduct

21  the proceedings as the rules of court shall provide. At the

22  request of any party, the trial resolution judge shall issue

23  subpoenas for the attendance of witnesses and for the

24  production of books, records, documents, and other evidence

25  and may apply to the court for orders compelling attendance

26  and production. Subpoenas shall be served and shall be

27  enforceable as provided by law.

28         (8)  The hearing shall be conducted by the trial

29  resolution judge, who may determine any question and render a

30  final decision.

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  1         (9)  The Florida Evidence Code shall apply to all

  2  proceedings under this section.

  3         (10)  Any party may enforce a final decision rendered

  4  in a voluntary trial by filing a petition for final judgment

  5  in the circuit court in the circuit in which the voluntary

  6  trial took place. Upon entry of final judgment by the circuit

  7  court an appeal may be taken to the appropriate appellate

  8  court. The harmless error doctrine shall apply in all appeals.

  9  No further review shall be permitted unless a constitutional

10  issue is raised. Factual findings determined in the voluntary

11  trial shall not be subject to appeal.

12         (11)  If no appeal is taken within the time provided by

13  rules promulgated by the Supreme Court, then the decision

14  shall be referred to the presiding court judge in the case, or

15  if one has not been assigned, then to the chief judge of the

16  circuit for assignment to a circuit judge, who shall enter

17  such orders and judgments as are required to carry out the

18  terms of decision, which orders shall be enforceable by the

19  contempt powers of the court and for which judgments

20  executions shall issue on request of a party.

21         (12)  This section shall not apply to any dispute

22  involving child custody, visitation, or child support, or to

23  any dispute that involves the rights of a third party not a

24  party to the voluntary trial resolution.

25         Section 4.  Section 57.071, Florida Statutes, is

26  amended to read:

27         57.071  Costs; what taxable.--

28         (1)  If costs are awarded to any party the following

29  shall also be allowed:

30         (a)(1)  The reasonable premiums or expenses paid on all

31  bonds or other security furnished by such party.

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  1         (b)(2)  The expense of the court reporter for per diem,

  2  transcribing proceedings and depositions, including opening

  3  statements and arguments by counsel.

  4         (c)(3)  Any sales or use tax due on legal services

  5  provided to such party, notwithstanding any other provision of

  6  law to the contrary.

  7         (2)  Expert witness fees shall not be awarded as

  8  taxable costs unless:

  9         (a)  The party retaining the expert witness files a

10  written notice with the court and each opposing party within

11  30 days of the retention of the expert witness, which notice

12  shall provide the expertise and experience of the expert, the

13  rate of compensation of the expert witness, the subject

14  matters or issues on which the expert is expected to render an

15  opinion, and an estimate of the overall fee of the expert

16  witness, including trial testimony; and

17         (b)  The party retaining the expert witness furnishes

18  each opposing party with a written report signed by the expert

19  witness which summarizes the expert witness's opinions, the

20  factual basis of the opinions including documentary evidence,

21  and the authorities relied upon in reaching the opinions, such

22  report shall be filed at least 30 days prior to discovery

23  cut-off, or 45 days prior to the trial, or as otherwise

24  determined by the court.

25         Section 5.  Section 57.105, Florida Statutes, is

26  amended to read:

27         57.105  Attorney's fee; sanctions for raising unfounded

28  claims or defenses; damages for delay of litigation.--

29         (1)  The court shall award a reasonable attorney's fee

30  to be paid to the prevailing party in equal amounts by the

31  losing party and the losing party's attorney on any claim or

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  1  defense in any civil action in which the court finds that the

  2  losing party or the losing party's attorney knew or should

  3  have known at the time a claim or defense was presented:

  4         (a)  That the claim or defense was not supported by the

  5  material facts necessary to establish the claim or defense; or

  6         (b)  That the application of then existing law to the

  7  facts the losing party or losing party's attorney knew or

  8  should have known would not support the claim or defense.

  9  there was a complete absence of a justiciable issue of either

10  law or fact raised by the complaint or defense of the losing

11  party;

12

13  Provided, however, that the losing party's attorney is not

14  personally responsible if he or she has acted in good faith,

15  based on the representations of his or her client as to the

16  existence of material facts. If the court awards fees to a

17  claimant pursuant to this subsection finds that there was a

18  complete absence of a justiciable issue of either law or fact

19  raised by the defense, the court shall also award prejudgment

20  interest.

21         (2)  Subsection (1) shall not apply if the court

22  determines that the claim or defense was presented as a good

23  faith attempt to change the then existing law as it applied to

24  the facts the losing party or losing party's attorney knew or

25  should have known at the time the claim or defense was

26  presented.

27         (3)  In any civil proceeding in which the moving party

28  proves, by a preponderance of the evidence, that any action

29  taken by the opposing party, including, but not limited to,

30  the filing of any pleading or part thereof, the assertion of

31  or response to any discovery demand, the assertion of any

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  1  claim or defense, or the response to any request by any other

  2  party, was taken primarily for the purpose of delay, the court

  3  shall award damages to the moving party for the time

  4  necessitated by the conduct in question. The absence of a

  5  justiciable basis for the action taken shall be prima facie

  6  evidence of such a purpose; but such a purpose may also be

  7  proved, in proper cases, notwithstanding an objective

  8  justiciable basis for the action taken.

  9         (4)  If a contract contains a provision allowing

10  attorney's fees to a party when he or she is required to take

11  any action to enforce the contract, the court may also allow

12  reasonable attorney's fees to the other party when that party

13  prevails in any action, whether as plaintiff or defendant,

14  with respect to the contract. This act shall take effect

15  October 1, 1988, and shall apply to contracts entered into on

16  said date or thereafter.

17         Section 6.  Subsection (4) is added to section 627.428,

18  Florida Statutes, to read:

19         627.428  Attorney's fee.--

20         (4)  This section shall not apply to any action in

21  which a defendant tenders an offer of judgment pursuant to s.

22  768.81, unless the judgment for actual damages rendered in

23  favor of the plaintiff is in an amount greater than 25 percent

24  above that offered by the defendant within 90 days after the

25  date on which suit is filed. In that event the fee must be

26  reasonable in light of the difference between the offer and

27  the judgment.

28         Section 7.  Section 768.77, Florida Statutes, is

29  amended to read:

30         768.77  Itemized verdict.--

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  1         (1)  In any action to which this part applies in which

  2  the trier of fact determines that liability exists on the part

  3  of the defendant, the trier of fact shall, as a part of the

  4  verdict, itemize the amounts to be awarded to the claimant

  5  into the following categories of damages:

  6         (1)(a)  Amounts intended to compensate the claimant for

  7  economic losses;

  8         (2)(b)  Amounts intended to compensate the claimant for

  9  noneconomic losses; and

10         (3)(c)  Amounts awarded to the claimant for punitive

11  damages, if applicable.

12         (2)  Each category of damages, other than punitive

13  damages, shall be further itemized into amounts intended to

14  compensate for losses which have been incurred prior to the

15  verdict and into amounts intended to compensate for losses to

16  be incurred in the future. Future damages itemized under

17  paragraph (1)(a) shall be computed before and after reduction

18  to present value. Damages itemized under paragraph (1)(b) or

19  paragraph (1)(c) shall not be reduced to present value. In

20  itemizing amounts intended to compensate for future losses,

21  the trier of fact shall set forth the period of years over

22  which such amounts are intended to provide compensation.

23         Section 8.  Paragraph (a) of subsection (1) of section

24  768.78, Florida Statutes, is amended to read:

25         768.78  Alternative methods of payment of damage

26  awards.--

27         (1)(a)  In any action to which this part applies in

28  which the court determines that trier of fact makes an award

29  to compensate the claimant includes for future economic losses

30  which exceed $250,000, payment of amounts intended to

31  compensate the claimant for these losses shall be made by one

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  1  of the following means, unless an alternative method of

  2  payment of damages is provided in this section:

  3         1.  The defendant may make a lump-sum payment for all

  4  damages so assessed, with future economic losses and expenses

  5  reduced to present value; or

  6         2.  Subject to the provisions of this subsection, the

  7  court shall, at the request of either party, unless the court

  8  determines that manifest injustice would result to any party,

  9  enter a judgment ordering future economic damages, as itemized

10  pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid

11  in whole or in part by periodic payments rather than by a

12  lump-sum payment.

13         Section 9.  Subsections (3), (5), and (7) of section

14  768.79, Florida Statutes, are amended to read:

15         768.79  Offer of judgment and demand for judgment.--

16         (3)  The offer shall be served upon the party to whom

17  it is made, but it shall not be filed unless it is accepted or

18  unless filing is necessary to enforce the provisions of this

19  section. In any case involving multiple party plaintiffs or

20  multiple party defendants, an offer shall specify its

21  applicability to each party. Each individual party may

22  thereafter accept or reject the offer as the offer applies to

23  such party. However, a plaintiff may make a global offer to

24  all defendants without specifying amounts applicable to each

25  defendant.

26         (5)  An offer may be withdrawn in writing which is

27  served before the date a written acceptance is filed. Once

28  withdrawn, an offer is void. A subsequent offer shall have the

29  effect of voiding any previous offer.

30         (7)(a)  Prior to awarding costs and fees pursuant to

31  this section the court shall determine whether the offer was

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  1  reasonable under the circumstances known at the time the offer

  2  was made. If a party is entitled to costs and fees pursuant to

  3  the provisions of this section, the court may, in its

  4  discretion, determine that an offer was not made in good

  5  faith. In such case, the court may disallow an award of costs

  6  and attorney's fees.

  7         (b)  When determining the entitlement to and

  8  reasonableness of an award of attorney's fees pursuant to this

  9  section, the court shall consider, along with all other

10  relevant criteria, the following additional factors:

11         1.  The then apparent merit or lack of merit in the

12  claim.

13         2.  The number and nature of offers made by the

14  parties.

15         3.  The closeness of questions of fact and law at

16  issue.

17         4.  Whether the proposal was reasonably rejected.

18         5.4.  Whether the person making the offer had

19  unreasonable refused to  furnish information necessary to

20  evaluate the reasonableness of such offer.

21         6.5.  Whether the suit was in the nature of a test case

22  presenting questions of far-reaching's importance affecting

23  nonparties.

24         7.6.  The amount of the additional delay cost and

25  expense that the person making the offer reasonable would be

26  expected to incur if the litigation should be prolonged.

27         Section 10.  If any provision of this act or the

28  application thereof to any person or circumstance is held

29  invalid, the invalidity does not affect other provisions or

30  applications of the act which can be given effect without the

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  1  invalid provision or application, and to this end the

  2  provision of this act are declared severable.

  3         Section 11.  This act shall take effect October 1,

  4  1998.

  5

  6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  7                         Senate Bill 942

  8

  9  The Committee Substitute for Senate Bill 942:

10  -    Provides for expedited trials and time frames in which to
         conduct those trials;
11
    -    Provides for instructions for juries;
12
    -    Provides for discussion of evidence in certain
13       circumstances and the taking of notes;

14  -    Provides for voluntary trial resolution;

15  -    Provides for the appointment of a trial resolution judge
         as well as for the method of compensating such judges;
16
    -    Provides for criteria for determining when it shall be
17       appropriate to tax costs of expert witnesses;

18  -    Provides for sanctions for raising unfounded defenses;

19  -    Revises language with respect to itemized verdicts;

20  -    Provides that offers of judgment may be voided by
         subsequent offers and a manner for applying the statute
21       when there are multiple parties; and

22  -    Creates new criteria for court determination of whether a
         statute was reasonably rejected.
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