THANK YOU, Y OUR HO NOR. MY NAME IS R OB CLARKE WITH THE LAW FIRM OF AUSLEY AND McMULLEN IN TALLAHAS SEE. WE ARE HERE TO ADDRESSCHANGES TO THE RULES OF CIVIL PROCEDURE AND ALSO A COUPLE OF FORMS WHICH I WILL TALK ABOUT IN JUST ONE MINUTE. I AM JOINED TODAY BY RICH ARD L. EVINSTEIN OF KRAMER, LEVINSTEIN AND STEW ART , AND MR. MACKEN ZIE , WITH HOLLAND & KNIGHT IN JACKSONVILLE . MR. MACKEN ZIE WAS CHAIR I N 2002-2003, WHEN MOST OF THESE RULES WERE AROVED B Y THE COMMITTEE. MR. LEVINSTEIN TACKLED RULE 1.214, WITH REGARD TO PROSECUTE.I UNDE RSTAND HE DEALT WITH IT FOR FO UR OF THE SIX Y EARSTHAT HE WAS ON T HECOMMITTEE.WITH THE COURT'S INDULGENCE , I WOULD LIKE TO DEFER TO MR . LEVENSTEIN AND ALSO MR. MACKENZIE AS RELATES TO CERTAIN ISSUES THAT I AM SURE THE COURT HAS SOME QUESTIONS ABO UT. I HAVE A COUPLE OF INTRODUCTORY COMMENTS AND THEN I WILL OPEN UP FOR QUESTIONS RELAT ING TO SPECIFIC RUL ES. FIRST OF ALL , A COUPLE OF THING S I WOULD LIKE TO POINT OUT TO THE COURT. WE DO HAVE 72 MEMBER S OF THE CIVIL RULES PROCEDURECOMMITTEE, MA DE UP OF LAWYERS WHO ARE PLAINTIFF-ORIENTED ANDLAWYERS WHO ARE DEFENSE-ERRORIENTED. IN ADDITION , WE HAVE -- -- DEFENSE ORIENTED .

CHIEF JUSTICE: I COMMENDYOU FOR COMING UP WITH THE CHANGES.THAT IS PROBABLY THE FIRST TIME.

THERE WAS DISCUSSION THIS MORNING THAT WE HAVE SOME PROGRESS TO PRESENT TO THE COURT UNDER GUIDAN CE WE RECEIVED FROM THE COURT, SO WE DO HAVE SOME SUBSTANTIVE CHANGES.AS FAR AS THE MAKE UP OF THE COMMITTEE, WE HAVE DIVERSEAREAS OF PRACTICE AND 30 PERCENT MADE UP OF JUDGES, EITHER AELLATE OR TRIAL COURT JUDGES, AND THEY ARE SOME OF OUR MOST ENERGETICMEMBERS, I CAN ASSURE YOU. TODAY WE HAVE FOUR RULE CHANGE THAT IS WE HAVEBEFORE THE COURT AND TWO CHANGES TO SOME FOR MS. SOME OF THE RULE C H ANGES ARE RATHER STRAIGHTFORWARD , SOME RATHER CONTROVERSIAL AND OTHERS HAVE BEEN SOMEWHAT EXTENSIVE LY DEBA TED, SO , JUDGE , WITH THAT, I W OULDLIKE TO S TOP.I HAVE MR. LEVENSTEIN TO TALK ABOUT 1. 420 AND MR . McKINCE TOY TALK A BOUT A COUPLE OF OTHER RULES - - MACKENZIE, TO T ALK ABOUT A COUPLE OF OTHER RULES.

CHIEF JUSTICE: I DO HAVE A QUESTION ON ONE SUBJECT. I REMEMBER THAT SOMETIME BACK, THERE WAS AN ATTEMPT TO LIMIT WHAT WAS PUT IN COURT FILES, BECA USE EVERYTHING WAS BEING THRO WN IN COURT FILES , AND NOW I T LOOKS LIKE WE ARE BACK TO WHERE WHEN SOMEONE FILES A MOTION FOR SUMMARY JUDGMENT , THE SA FEST THING I S GOING TO BE TO JUST FILE EVERYTHING A GAIN, AND I DON'T KN OW. MAYBE THAT IS JUST WHERE WE HAVE TO GET TO .

THE CHANGE IN THE RULES IS ACTUALLY WHAT PRECIPITATED WHERE WE A RETODAY WITH THE PROPOSAL , AND I WOULD LIKE MR . MacKENZIE TO ADDRESS THAT , I F I MAY .

IF IT PLEAS E THE COURT , MY NAME IS DONNY MacKENZIE, AND I WAS THE CHAIR WHEN THIS RULE FOUND ITS NEMESIS , AND ROBERT GAINS , W HO WAS ON THIS COMMITTEE FOR 24 YE ARS , WROTE A LETTER AS H IS FI NAL LETTER AS HE WAS LEAVING THECOMMITTEE, AND SAID THAT RULE 1.510 , IT A EARED FROM A LAWT UDE ITENT THAT HE HAD -- FROM A LAW ST UDENT THAT HE HAD BEEN TEACHING, THAT THE RULE WAS OUT DATED , T HAT BECAUSE OF THE FACT THAT W E NO LONGER FILE DISC OVERY IN , AS A MA TTER OF COUR SE, THAT RULE 1. 510 , WHEN IT REFERENCED AFFIDAVITS AND OTHER THINGS , IT DIDN'T , IT WAS WRITTEN IN A TIME WHEN EVERYBODY UNDERSTOOD T HAT YOU WOULD NORMALLY FILE YOUR DISCOVERY.THIS WAS, THEN , TAKEN TO A SUBCOMMITTEE, AND FOR TWO YEARS , THE SUBCOMMITTEE ESSENTIALLY DID VERY LITTLE TO IT, AND ACTU ALLY SUGGESTED THAT NO ACTION BE TAKEN , AND I WAS QU ITE AMAZED, BECAUSE ALM OS T UNANIMOUSLY, IN THE COMMITTEE, WHEN THE SUBCOMMITTEE REPORTED BACK , THE COMMITTEE SAID , NO , WE WANT TO CHANGE THIS RULE , AND THE REASON WHY THEY WANTED TO CHANGE THE RULE WAS THEY WANTED TO CREA TE A UNIFORM RULE AND SIMILAR TO WHAT THIS COURT DID IN OCTOBER OF 20 03 , THE LAST TIME I WAS HERE WITH RESPECT TO RULE 1.190 , AMENDING FOR LEAVE TO AMEND FOR PU NITIVE DAMAGES, THE COMMIT TEE AND THE SUBC OMMITTEE STR ONGLY FELT THAT YOU, WE NE EDED T O CREATE A NUCHL RULE , ONE , SO THAT IT WOULD BE UNIFOR M, AND, TWO, THAT IT WOULD TAKE AWAY THE SURP RISE OF WHAT WAS ENCOUNTE RED IN THE PUNITIVE D AMAGES PROFFER S.

COULD I ASK A QUES TION. WE COLONE L HAVE A COMMISSION THAT IS STUDY -- WE COLONEL HAVE -- WE CURRENT LY HAVE A COMMISSION THAT IS STUDYING WHAT SHOULD BE IN A C OURTFILE. HAS YOUR COMMITTEE BEEN IN COORDINATION WITH THEM, BECAUSE WE DON'T KNOW IF THIS IS A PUBLIC INF ORMATIONPROBLEM THAT WE HAVE, A DISCLOSURE OF INFORMATION, THAT KIND EVER THING, AND I JUST WONDER WHERE WE ARE GOING WITH THIS RULE AND WHETHER WE MAY GET IN TO A CONFLICT BETWEEN THE ACTIVITY OF THIS PROP OSAL AND WHAT MAY COME OUT OF THAT KMISMINGTS.

THE ANSWER TO Y OUR QUESTION, JUSTICE, IS , N O, WE HAVEN'T TALK ED TO THAT OTHER SUBCO MMITTEE , B UT, AGAIN, I THINK , THE INTENT BY THIS RULE IS FAI RLY CLEAR. WE DO NOT WANT T O ABROGATE OR AF FECT THE RULES REGARDING FILING. WE DON'T, WE ARE NOT ADVOCATING YOU FILE THINGS JUST FOR THE S AKE OF FILING. WHAT WE ARE ADVO CATING IS THAT, SIMILAR TO THE PUNITIVE DA MAGES PROFFERS , THAT WE DON'T WANT TO HAVE ANOTHER BEVERLY SITUATION. WE DON'T WANT TO HAVE A SITUATION WHERE LITIGANTS ARE SAYI NG I DIDN'T HAVE THIS DISCOVERY. WE NEED A CONTINUANCE OF THIS HEARING. IT IS A QUESTION OF DUE PROCESS.IT IS A QUESTION OF LET'S MAKE CLEAR THAT , IF YOU , BECAUSE THE RULE SAYS THE MATTERS UPON WHICH THE MOTION TO BE ARGUED , SHOULD BE SUBSTANTIALLY STATED AND ARTICULATED .

LET ME SEE IF I CAN UNDERSTAND THE PURPOSE OF ADVOCATING THIS CHANGE , BECAUSE WHEN I I N ITIALLY EXAMINED, THIS MY REACTI ONWAS THAT THIS WASN'T AN ATTEMPT TO B RING CLA RITY T O JUST EXACTLY WHAT WOULD BE BEFORE THE COURT TO CON SIDER IN DECI DING THE IS SUES RAISED IN A MOTION F ORSUMMARY JUDGMENT . SO THAT THERE WOULD BE VERY SPECIFIC UNDERSTANDING OF JUST EXACTLY WHAT THE C OURTWOULD HAVE BEFO RE IT , WHETHER IT WAS DEPOSITI ONS , WHETHER THERE WERE INTERROGATORIES AND ANSW ERS TO INTERROGATORIES , YOU K NO W , THE FULL GAMUT OF THE KI NDS OF DISCOVERY OR OTHER MATERIALS THAT M IGHTPROPERLY BE BEFORE A COURT AND, OF COURSE , I THINK THE, THERE IS A RE FERENCE HERE T O EVIDENCE THAT WOULD BE ADMISSIBLE , PROP ERLY ADMISSIBLE AT TRIAL, BUT IS THAT A FAIR STATEMENT , WHAT THE --

YES, SIR.

-- THE PUR POSE WAS HERE , SO THAT THERE WOULD B E NO SANDBAGGING OR SUR PRISE OR WHATEVER WHAT , THAT THERE WOULD BE EX PRESS CLARITY , AS TO WHAT THE COURT COULD PROPERLY CONS IDER I N DETERMINING THE ISS UES RAISED IN A MOTION F ORSUMMARY JUDGMENT .

ABSOLUTELY , AND I T DOESN'T AFFECT THE RIGHT T O A CONTINUANCE , IF YOU HAVEN'T HAD A CHANCE TO T AKE THE DISCOVERY. IT DOESN'T, THERE WAS A COMMENT BY MR. TRAWICK , I F YOU HAVEN'T HAD THE TRITE TO TAKE DISCOVERY -- THE RIGHT TO TAKE DISCOVERY , IT T HIS RULE IS NOT GOING TO PRECLUDE YOU. YOU ST ILL HAVE A RIGHT TO SAY I HAVEN'T HAD ENOUGH TIME, YOUR HO NOR. MAY I IT IS A SOME MORE -- MAY I TAKE SOME MORE DISCOVERY.IT IS SIMPLY A RULE TO AVOID THE BEVERLY SITUATION IN THE PUNITIVE DAMAGES PROFFERS , THAT SIMPLY SAYS IF YOU AREGOING TO RELY ON SOMETHIN G AND YOU HAVEN'T TONE SHOW N IT TO YOUR OO NENT - - AND YOU HAVEN'T SHOW N IT TO YOUR OONENT, YOU NEED TO S HOW IT TO YOUR O P PONENT. IF YOU ARE THE MOVANT, YOU NEED TO SHOW IT WITHIN 2 0 DAYS AND IF Y OU ARE THE OONENT, YOU NEED TO SHOW IT WITHIN FI VE. WE STARTED OUT WITH SAYING THE RULES ARE OUT DATED AND WE NEED A UNIFORM RULE , AND IT PROGRESSED INTO AN ISSUE OF FAIRNESS AND DUE PROCESS. EYE WONDER IF WE CAN TALK ABOUT RULE 1.420. TIME IS F LYING BY HERE.

YES, SIR. THANK YOU .

GOOD MORNING, YOUR HONOR.

I HAVE A SPECIFICQUESTION.

MY NAME IS RICHARD L.EVINSTEIN I SERVED ON THEPROCEDURAL RULES COMMITTEE FOR SIX Y EARS FROM 1998 T O 2004, WHEN I WAS T ER M LIMITED OFF. THE RULE COMMITTEE, WHEN I WAS IN P LACE , I BEGAN BY SERVING FOUR OF MY SIX YE ARS AS ITS CHAIR. I KNOW JUSTICE LE WIS WAS IN ATTENDANCE AT SOME OF THOSE MEETINGS, AND THAT IS THE BACKGROUND FROM WHICH I C OME WITH RE GARD TO THIS RULE , AND IT WAS FINA LLY P ASSED , OVER A YEAR AFTER I LEF T THE COMMITTEE .

I HAVE GOT TWO QUESTIONS. ONE , IS THE INTENT OF THE RULE TO AVOID THIS COURT'S CASE LAW ON THE PROGRESSING THE CASE TO WARD TRIAL , AS FAR AS FILING WHAT EVER IS FILED, AND SECO NDLY , DID THE COMMITTEE CONSIDER THE FEDERAL DIST RICT COURT L OCAL RULES, IN RE SPECT TO THE PROSECUTION OF CASES, IN THAT I NOTE THAT BOTH THE NORTHERN DIST RICT AND THE SOUTHERN DISTRICT, HAVE A 90- DAY PROVISION , AND IF THE COURT, I F THE COMMITTEE CONSIDERED IT, WHAT WAS THE REASON NOT T O GO IN THAT DIRECTION?

THE OBJECTIVE AND THE GOAL OF OUR W O RK ON THE RULE , WAS TO PROTECT PA RTY LITIGANTS.THERE HAS BEEN MUCH WRIT TEN IN THE RESPONSES WITH RESPECT T O COU NSEL BENEFITTING FROM THIS CHAN GE THAT WE ARE PROP OSING. THE RULE WAS ADO PTED , AMENDED AND THE DISCUS SIONS OVER THE YEARS TOOK PL ACE , BECAUSE OF ANECDO TAL AND CASE LAW DECIS IONS THAT WERE CONSIDERED TO BE HA RSH AND DRACONIAN BY MANY MEM BERS, BOTH JUDICIAL MEMBERS AND BAR MEMBERS OF THE COMMITTEE.

WHEN YOU SAY PROTECT LITIGANTS , THAT IS LITIGA NTS THAT ARE BRING ING THE C ASESAS OOSED TO THE LIT IGANTSTHAT ARE BEING S UED.

THAT'S CORRECT. PEOPLE WHO WERE BRINGING CASES, ALTH OUGH PARTIES DEFENDANT HAVE THE SAME OORTUNITIES TO MOVE C ASESTO A CONCLUSION , S HOULD THEY CHOOSE TO, BY FILING MOTI ON TO SAY DISMISS, MOTIONS F ORSUMMARY JUDGMENT , AND NOTICING CASES FOR TRIAL , THAT ARE AT ISSUE. WE WERE CONCER NED WITH SOME OF THE RESULTS THAT WERE RELATED TO US OVER THE YEARS , BY MEMBERS OF THE COMMITTEE , JUDGES, ATTOR NEYS ALI KE . NONMEMBERS OF THE COMMITTEE WHO SUBMITTED COMMENTS A ND LETTERS TO US OVER THE YEARS, ABOUT THE OPERATION OF THIS RULE.

WHAT WAS THE VOT E ON THIS?

THE COMMITTEE VOTE , I WILL TELL THAT YOU IN O NEMOMENT, WAS 35-TO-7 , AND THE BAR , FLOR IDA BAR BO ARD OF GOVERNORS AROVED IT BY 3-TO-0 VOTE

CHIEF JUSTICE: GOING BACKTO WHAT JUSTICE WELLS'SQUESTION IS , W E HAVE HAD CASE AFTER CASE INVOLVING THIS, AND IN F A CT WE HAVE A CASE PENDING RIGHT NO W, ABOUT ISSUES ABOUT WHAT IS RECORD ACTIVITY, AND I THINK THAT THE , YOU WANT TO STR IKE A BALA NCE BET WEEN BEING F AIR TO THE LITIGANTS AND , AL SO , MAKING SURE THAT THE CASE I S MOVED AL ONG . UNDER, SO , BACK TO JUSTICE WELLS'S QUESTION , IS THAT , IN TRYING TO BALANC E THAT , YOU KNOW, COULD IT JUST BE THAT, WITH THIS , THAT YOU HAVE GOT THE TEN-MO NTH THING AND THEN ALL OF A SUD DEN THE LITIGANT FILES AN OTHER PLEADING, YOU KNOW , A REQUEST FOR AD MISSIONS , AND THEN ANOTHER TEN MO NTHS GOES BY AND IT JUST KEEPS ON GOING.

BUT THE PRAC TICAL ALICATION OF THE PR ESENT RULE IS THAT SOMEBODY REALIZES THAT ELEVEN MONTHS AND 25 DAYS HAS P A SSED SINCETHE LAST RE CORD ACT IVITY , THEY CAN DO THAT VERY SAME THING, BY PROV IDING A NOTICE, NUMBER ONE, YOU ARE PUT HAD GONE THAT PLAINTIFF'S ATTORNEY ON NOTICE THAT, IF NOTHING IS DONE WITHIN THE NEXT 60 DAYS , THE CASE SHALL BE DISM ISSED . IF NOTHING IS DONE WITHIN THAT 6 0-DAY PERI OD, WE ASSUME THAT THE COURTS OF THIS STATE WILL ADOPT A MUCH HIGHER STANDARD THAN EVEN PRESENTLY EXIS TS AS TO SHOWING GOOD CA USE, BECA US E IT WOULD SEEM THAT , A B SENT SOME EXI GENT EMERGENCY CIRCUMSTANCE , SHOWING G OOD CAUSE UNDER THOSE CIRCUMSTANCES, WOULD BE VIRTUALLY IMPOSSIBLE AND T HECASE WOULD, THEN, BE DISPOSED OF .

CHIEF JUSTICE: DID YOUR COMMITTEE AT ALL LO OK AT THE ISSUE ABOUT, FI RST , WHAT H ASTO AEAR ON THE FACE OF THE RECORD, THAT NO ACTI VITY BY FILING PLEA DINGS , ORDER OF COURT OR OTHERWISE, AND LOOKING AT OUR DECI SIONS ON THAT, ABOUT WHAT THAT E VEN MEANS?

W E ORIG INALLY , THERE ARE ORIGINALLY SUGGESTION INS THE RULE CHANGES, TO DEFINE WHAT RECORD ACTIVITY ME ANT. THE MAJORITY OF THE COMMITTEE ON THE SENTIMENT OF THE COMMITTEE, WAS THAT THAT WAS A SUBSTANTIVE LAW CHANGE AND THAT WAS NOT WITHIN OURPURVIEW . -- WITHIN OUR PUR VIEW . THERE WERE DISCUSSION ANSWER WE DECIDED THAT WAS NOT IN OUR JURISDICTION OR PURV IEW , SO WE DIDN'T ADDRESS THAT IN GREAT DETAIL.

CHIEF JUSTICE: IF WE WANTED TO BE SIGNIFICANT A NDFAIR TO THE PARTIES AND MOVE THINGS ALONG, IS TO B E MORE SPECIFIC WITH WHAT WE MEAN BY PLEADINGS , OR DER OF COURT OR OTHERWISE, . ISN'T THAT WHERE WE WANT T O LOOK SO THAT WE DON' T HAVE THE CHURNING OF THIS CASE YEAR AFTER YEAR , WHE THER IT BE 11 MONTHS OR TEN MONTHS.

THAT WOULD BE A GOOD START DOVETAILING WITH THE PARTY LITIGANTS , IN CLUDING CLAIMANTS, AND WE DO NOT BELIEVE FROM A COMMITTEE STANDPOINT THAT, SUBSTA NTIVE LY AND PRACTI CALLY SPEA KING , THIS WILL CHANGE VERY MA NY THINGS AS FROM HOW THEY EXIST NOW, BECAUSE IN MANY CASES, WHEN ATTORNEYS DO REALIZE THAT THERE IS THE ELEVEN-MONTH PERIOD AROACHING, THEY FILE A NOTICE OF A DEPOSITION O R REQUEST FOR ADM ISSIONS OR SOMETHING ELSE TO KEEP THECASE ALIVE .

IT, REALLY, THOU GH, DOES REMOVE SOME DEGREE OF DISCRETION FROM THE T RIALJUDGE.THE TRIAL JUDGE IS CON FRONTED WITH TIME STANDARDS BY THIS COURT.

YES.

AND THEN THE PLAI NTIFF CAN JUST POP A NEUTRAL T YPE OF PLEADING IN AND KEEP THESE CASES GOING , SOMETI MES FOR SEVEN OR EIGHT YEARS. ISN'T THAT A PROBLEM?

IT IS A PROBLE M BUT THAT IS UNDER THE EXISTING RULE , THAT IS WHAT OCCU RS. WE PERCEIVE THAT IS , UN DE R THIS RULE, IF THERE IS A NOTIFICATION GIVEN TO THE PARTY PLAINTIFF --

THE FEDERAL DISTR ICT COURT RULES. ANOTHER FE DERAL DISTRICT COURT RULES UNDER THE 90-D AY RULE, I MUST BE HONEST. WE DID NOT SPEND A LO T OF TIME ON THAT PARTICULAR RULE. PRACTICALLY SPEAKING, TH OUGH , BECAUSE OF THE MOTION PRACTICE IN FEDERAL COURT , RARELY HAVE I EVER SEEN OR HEARD AFFORDER BEING ENTEREDFOR A 9 0-DAY L OCK PROSECUTION IN A FEDERAL DISTRICT COURT. AT LEAST I AM FAMILIAR WITH THE SOUTHERN DISTRICT OF FLORIDA. I DON'T THINK I HAVE EVER SEE N AN ORDER DISMISSI NG A CASE IN A 90 -DAY SE TTING F ORLACK OF PROSECUTION.

THAT IS BECAUSE THERE IS ACTIVE CASE MANAGE MENT BY THE COURT.

THAT IS TR UE.

HERE WE ESTABLIS HED A PARTICULAR SY STEM ESSENTIALLY TO RE MIND A PLAINTIFF'S LAWYER TO F ILE SOMETHING.IF YOU ARE GOING TO ESTABLISH THAT KIND A FTERSYSTEM TO TR Y TO K EEP THECASE GOING ALONG, WH Y NOT D O IT EARLIER THAN TEN MONTHS? WHY NOT SIX MONTHS, SO TH ATWE CAN G ET THE CASE MOVING ALONG?

WE DEBA TED THE TIME FRAME. IT WAS ANYWH ERE FROM A THREE OR FOUR -MONTH PERI OD TO THE 12-MONTH PERIOD THAT EXISTS.

CHIEF JUSTICE: HAVE YOU EVER CONSIDERED AFTER THE FIRST YEAR, IN OTHER WORDS , TEN MONTHS AFTER THE FIRST YEAR BUT THEN MOVING IT TO IF IT GETS TO TWO YEARS , THREE YEARS THAT , MAYBE IT NEEDS TO BE A SHORTER TERM.

FOR A SE COND G O ARO UND AFTER THE FIRST TIME?

CHIEF JUSTICE: RIGH T.

THAT , WE CONSID ERED EVEN A PROVISION THAT THERE WOULD ONLY BE ONE OF THESE NOTICESGIVEN AND AFTER THE FIRST NOTICE, IF TEN OR TW ELVE MONTHS WE NT BY OR WHA TEVER THE CASE MAY BE , THAT THE CASE WOULD BE DISMISSEDWITHOUT ANY NECESSITY OR POSSIBILITY OF A SMO ING - - OF A SHOW ING OF GOOD CAUSE AS WELL.

LET ME PLAY DEVIL'S ADVOCATE A LITTLE BIT HERE. BECAUSE IT WOULD A EAR THAT THE TWO MAIN POLICY CONSIDERATION THAT WE HAVEWOULD BE, ONE, THE PO LICY CONSIDERATION THATORDINARILY CASES BE DEC IDED ODD THEIR MERITS. AS OP POSED TO SOME PROCEDURAL TRAP. THE SEC OND CONSIDERATION , THOUGH, IS EQUALLY AN IMPORTANT ONE, AND I AM SU RE THAT IS WHY THE JUD GE IS HERE TO DAY , AND THAT IS SO RT OF THE DEAD WOOD POLICY.

YES , SIR.

SO THIS CHANGE SEEMS TOSUBSTANTIALLY FA VOR THE DECIDING CASES ON THE MER ITS , AND IN LI MITING , THOSE INSTANCES WHERE CASES MAY BE DISMISSED UNDER THE RULES. LET ME ASK YOU , THEN , AS A , PERHAPS ON BEHA LF THE JUDGE THERE , THAT FACES THE DEAD WOOD PROBLEM ALL THE TIME , IS HOW MUCH DID YOU ALL DEBATE AND T ALK ABOUT T HE, QUOTE , DEAD WOOD ISSUE, AND HOW EFFECTIVE THIS RULE WOULD, THEN , BE, AS MODIFIED IN ADDRESSI NG OF THAT ISSUE , WHETHER IT WOULD HELP IT OR AGGRAVATE IT O R , SO COULD YOU, I REA LIZE , AND CLEARLY , THERE IS VERY , VERY IMPORTANT POLICY BEHIND HAVING CASES , LITIGA NTS' CASES DECIDED ON THE MERI TS IN THE COURTS. I DON'T THINK THERE IS ANY DOUBT ABOUT THAT. BUT LE T'S LO OK AT THE DEAD WOOD ISSUE AND WOULD YOU TELL ME HOW , WHAT DISCUSSIONS THE COMMITTEE OR THE SUBCOMMI TTEE HAD , A BOUT THAT ISSUE , THAT IS BECAUSE WE ALL KNOW THAT MANY TIMES , IT IS THOSE CASES THAT ARE JUST THERE , AND THEY SOMETIMES PR EVENT THE MERITORIOUS CASES FROM B E REGULAR SOLVED IN A TIMELY MANNER ON A JUDGE'S DOCK ET, SO HELP US WITH THAT.

I WILL DO MY BEST , YOURHONOR. THIS WAS AN ATTEMPT T O BALANCE THE INTERESTS BETWEEN THE POLICY O F CASES BEING DECIDED ON THEIR MERITS AND CASES LANG UISH ING IN THE COURTS AND BEING DEAD WOOD, AS YOUR HO NOR INDICATED. WE WANTED TO ABO LISH THE GOTCHA PO RTION OF THIS RULE , AS WE DO WITH ALL OF THE RULES THAT WE LOOK AT. WE TRY TO FIND A FAIR BALANCE WHEN THERE IS I SSUEBROUGHT TO OUR ATTE NTION , TO PROTECT THE SYSTEM, PROTECT THE PARTIES , LITIGANTS TO THE CASE, AND MA KE THE SYSTEM MORE EFFICIENT WITH REGARD TO THESE RULES. WE UNDERSTAND THAT T HECOURTS ARE UNDER TIME FR APS AND TIME CONSTRAINTS WITH REGARD TO DEAD WOOD CASES. HOWEVER, THE WAY THAT W E VIEWED THIS E NTIRE SITU ATION , WAS THAT , SO LONG AS THERE WAS AN OORTUNITY AFTER E LEVEN MONTHS AND 28 OR 29 OR WHAT EVER MANY DAYS OR UP TO THAT POINT , TO FILE A PLEADING AND OBTAIN A N EWLIFE TO THE CASE , THAT THIS RULE, AT TEN MONTHS OR ANY OTHER TIME, G IVING A NOTICE , WOULD BALANCE THAT INT EREST AGAINST THE DEAD WOOD CASES THAT WOULD POSSIBLY LOGJAM THE COURTS .

COULD WE ASK THE QUESTION ABOUT THIS.

YES, SIR .

AS LONG AS I HAVE BEEN A MEMBER OF THE FLORIDA BA R, THIS CONCEPT OF LET'S GET RID OF THE CASE, HAS BEEN THE MECHANI SM T O GET RI D OF THIS DEAD WOOD. HAVE YOU CONSIDERED , I DON'T BELIEVE THAT THERE IS A PLAINTIFF ANYWHERE THAT WANTS THEIR CASE J UST SITTING THERE. I DON'T BE LIEVE THAT THEY HIRE A LAWYER TO HAVE I T SET. HAVE WE EVER DISCUSSED SOME TYPE OF NOTIFICATION , S OME TYPE OF REQU IREMENT THAT THE CLIENT INVOLVEM ENT BE CONSIDERED . COME BEFORE THE COURT AT THE HEARING OR SOMETHING , THAT WOULD CAUSE THE CLIENT T O KNOW THIS LAWYER IS NOT MOVING THIS C ASE.

WE DID DISCUSS POTENTIALLY FORWARDING THIS NOTICE OR A COP Y OF T HIS NOTICE TO THE CLIENT AS WELL AS THE ATTORNEY , AND IT WAS NOT RECEIVED VERY WELL I N TERMS OF DI RECT CONTACT TO THE CLIENT. THERE WAS CONC ERN ON THE PART OF LAWYERS WITH DIRECT CONTACT BETWEEN THE COURTS AND THE CLIENT. I PERSONALLY THINK THAT WOULD BE POSSIBLY ADVISEAB LE, BECAUSE THE CLIENT WOULD,THEN, BE BROUGHT INTO THE PROCESS.WE ARE , ALSO , CONCERNED WITH PRO SE LITIGANTS AS WELL , WHO MIGHT NOT BE AWAR E OF A RULE LIKE THIS , AND AFTER TWELVE MONTHS , THEY WOULD RECEIVE NOTICE THAT THE CASE WAS GOING TO BE DISMISSED. THIS WAY THEY GET THE TEN-MONTH NOTICE AND THEY ARE PUT ON NOTICE OF WHAT HAENS.

CAN I ASK ABOUT ONE R ULE BEFORE YOU SIT DOWN. THAT IS RULE 1.380 -A- 4, WHICH TALKS ABOUT NOT GETTING FEES AND CO STS I F YOU DON'T DO THE CERTIFICATION THAT YOU ATTEMPTED TO LITIGATE OR ATTEMPTED TO GET YOUR DISCOVERY , AND WHAT IS T HEPURPOSE OF THAT? I MEAN, WHY ARE WE , WE S AY YOU ARE SU OSED TO PU T THIS IN THERE AND NOW YOU ARE GOING IMPOSE AN ADDITIONAL SANCTION, REQUIREMENT , THAT IF YOU DON'T DO IT , WE ARE NOT GOING TO GIVE YOU FE ES. WHY ?

THE INTENT OF THAT RULE , AND, A G AIN, THE GENESI S OF THE RULE CAME ABOUT WHEN , I N 2002, WE R E VIEWED THE FEDERAL RULES WITH THE FLORIDA RULES, TO SEE IF WE COULD, PERHAPS, G AIN SOME INSIGHT FROM THEM , AND A-4 SPECIFICALLY , THE INTENT IS THAT YOU WOULD NOT B E ENTITLED TO EXPENSES , UNLESS YOU MADE A GOOD FAITH EFFORT TO RE SOLVE YOUR MOTION BEFORE FILING IT. THAT, I THINK THAT ANS WERS YOUR QUESTION.

SO WE HAVE TO , YOU HAVE TO DO THE CERTIFICATE , AND ARE WE CREATING SOME OTHER LITIGATION HERE ?

NO. AND I SAW MR . BE TTER MAN'S AND MR. -- MR. BE RMAN AND'S AND MR. TRA WICK 'S COMM ENTS , AND WITH ALL DUE RESPECT T O THEM, WE THOUGHT THAT , IF A LAWYER CERTIFIES THAT HE HAS DONE SOMETHING, A THAT IN FACT HE HAS DONE THAT.

CHIEF JUSTICE: I KNOW T HEFIFTEENTH CIRCUIT HAS AL WAYS HAD A LOCAL RULE REQUIRINGTHAT AND THE FEDE RAL COU RTS --

THIS RULE FOLL OWS RULE 37, AND FROM AN INFORMAL SUR VEY, WE THINK MOST LOCAL CIRCUI TS HAVE THIS RULE IN PLACE. WE ARE SIMPLY WANTING T O PUT IT IN THE F LORIDA RULES , AND THE PURPOSE OF THE RULE IS TO MAKE PEO PLE PIC K UP THE TELEPHONE AND TRY TO WORK OUT THEIR DISCOVERY DIS PUTES , AND IF YOU DO NOT PICK UP THE TELEPHONE AND WORK OUT YOUR DISCOVERY DISPUTES, YOU ARE NOT GOING TO BE ENTI TLED TO BE AW ARD E X PENSES .

NOW, THE REAL ITY IS THAT LAWYERS A LOT OF TIMES, DON'T PIC K UP THE TELEPHONE. THEY SIMPLY FAX A LETTER AND SAY THIS IS YOUR WARNINGTHAT I AM GOING TO FILE A MOTION, IF YOU DON'T RESO LVE THIS ISSUE.

THAT IS WHY WE PUT IN THERULE, GOOD FAITH EFFORT . AND , A G AIN, IT IS ALL PREDICATED ON GOOD FAIT H, B UT, ALSO, AND I THINK , JUSTICE, YOU WERE, BECAU SE THERE WAS SOME COMMENTS ABOUT ARE YOU CERTIF YING O R WHETHER , ARE YOU ACTUALLY MAKING THE EFFORT. WITH ALL DUE RESPECT, IF YOU CERTIFY SOME THING AS A FLORIDA LAWYER, YOU DID IT. YOU KNOW, WE COULD CHANGE THE RULE TO SAY THAT YOU ARE NOT ENTITLED TO EXPENSES UNLESS YOU IN GOOD FAITH, MAKE THE EFFORT , BUT WE THOUGHT IT WAS CLEANER TO SAY CERTIFY T IF YOU SAY YOU DID IT, YOU DID IT. AND THAT IS WHAT WE ARETRYING TO PLOM O AT. CIVIL -- PRO MOTE , CIVILITY AND PEOPLE WORKING THESE ISSUES OUT.

CHIEF JUSTICE: OKAY. THANK YOU FOR YOUR COMMENTS. THANK YOU VERY MUCH FOR BEING HERE . YOU ARE REPRES ENTING THE WHOLE TENTH CIRC UIT. WHAT I THOUGHT WAS INTERESTING, WAS THERE ANY ATTEMPT TO, LET ME HAVE YOU STATE YOUR AEAR ANCE FIRST.

I AM R ALPH ARTIGLIERE AND I AM A CIR CUIT JUDGE A NDHERE TO REPRESENT ALL OF THE JUDGES OF THE CIRC UIT.

CHIEF JUSTICE: HAVE Y OUMADE AN ATTEMPT TO SEE I F THE CIRCUIT CONFERENCE WAS INTERESTED IN THIS ISSUE , ASFAR AS SO RT OF INTE RESTING OF ALL OF THE 20 CIRCUI TS.

LET ME TELL YOU A LITTLE BIT ABOUT. THAT I AM VERY PL EASED BECAUSE I WANT TO TELL YOU WHAT OUR F O CUS I S ON THIS AND TO HAVE THIS OORTU NITY , BUT I BECAME INVO LVED ON MARCH 1 , BECAUSE THERE WAS A NOTICE IN THE BAR NEW S OF THIS YEAR.I HAD NO IDEA THEY WERE CHANGING THIS RULE . I SAW IT. I AM THE ADMINISTRA TIVE CIVIL JUDGE, SO I PRESENTEDTO MY CIVIL JUDGES. THEY SAID THIS IS A PROBLE M, A REAL PROB LEM FOR US. LET'S DISCUSS IT WITH THE FAMILIAR JUDGES. WE DID THAT. MY CHIEF HAD ME PRE SENT IT TO ALL OF OUR JUDGES IN O URCIRCUIT , AND WE DECIDE DED THAT IT WAS AROPRIATE , THIS ISN'T RA LPH ARTIGLIERE. IT THIS IS ALL OF THE JUDGES. MATTER OF FACT THEY PARTICIPATED IN PREPARING THE BREECHLT ARRIVE ONE H ASSEEN IT AND MY COM ING HERE TODAY WAS BECAUSE THEY SAW THE RESPONSE THAT THEY GOT FROM THE COMMITTEE AND FELT THAT WE NEEDED TO BE HERE TO EXPRESS OUR VIEW. WHEN I GOT THEIR RESPONSE AND THEY SAID THAT IT SE EMS LIKE ONLY THE JUDGES OF THE TENTH CIRCUIT ARE CONCERNEDABOUT THIS, I WAS VERY NONPLUSSED . THAT THEY WOULD PUT THAT IN THE BRIEF , THAT IT WOULD , THAT IT SEEMS LI KE WE ARE THE ONLY OBJEC TS THAT ARE -- THE ONLY ONES THAT ARE CONCERNED ABOUT IT, SO WHE N I WAS IN SGANS VILLE TEACHING AT THE -- IN GAINESVILLE TEACHING AT THE ADV ANCED TRIAL ADVOCA CY COURTS, I ASKED THEM ABOUT IT AND TWO WEEKS AGO I ASKED SOME JUDGES THERE, AND I DIDN'T THINK WAS MY JOB TO GO AROUND AND POLL JUDGES AROUND THE S TATE - -

CHIEF JUSTICE: WHY DON'T YOU PRESENT YOUR POSIT ION ON THAT TODAY.

THE FACT OF THE MATTER IS THE REASON IS, THEY D ON'TKNOW THAT THIS IS BEINGCHANGED.THAT IS THE PROBLEM , AND SO , THAT WAS WHAT WAS EXP RESSED TO ME , SO THIS RULE --

HASN'T THIS CHAN GED , THOUGH, AND BEEN PUBLIS HED IN THE FLORIDA BAR NEWS ?

EVERYTHING HAS BEEN AROPRIATELY DONE. JUSTICE ANSTEAD, I SE T ON YOUR COMMITTEE FOR STANDARD JURY INSTRUCT IONS AND I K NOW AULT WORK THAT HAS GONE INT O. THAT I KNOW THE SECOND-GUESSING THAT THEY FEEL COMES WHEN SOMEBO DY COMES IN AT THE LAST M INUTE , BUT I DIDN'T KNOW ABOUT THIS UNTIL I READ IT IN "THEFLORIDA BAR JOURN AL" .

CHIEF JUSTICE: I ASSU ME THERE WERE JUDGES ON THIS COMMITTEE FOR SE VERAL YEARS .

ORDINARILY WHE N WE HAVE REPRESENTDATION BY SEVERAL MEMBERS OF THE CRI MINAL BAR AND CIVIL BAR , THAT THEY ALSO TAKE THAT AS A RESPONSIBILITY AS , SORT OF ALSO BEING IN A REPRESENT ATIVE CAPACITY. IN OTHER WORDS, HOW WOULD THIS AFFECT THE COURTS OF AEAL, FOR FOR INSTANCE, IF IT IS AN AE LLATE PROBLEM THERE.

I SET O N YOUR JURY COMMITTEE AND I DON'T , HOWEVER , CONTACT ANY OTHER JUDGES.

DID YOU MEET WITH JUDGES OF THE COMMITTEE, T O ASK THEM ABOUT HOW THIS DEB ATE WENT ON THE COMMITTEE?

NO, SIR, I DID NOT. I WAS ASKED B Y MR . CL ARKE T O TALK TO MR. LEVINSTEIN, AND IT SAID IN THERE THAT THEY HAD ADDRESSE D MY CONCE RNS , BUT THIS IS AFTER - -

CHIEF JUSTICE: LET'S G ETTO THE CONTENT RATHER THAN THE PROCEDURE HERE.

THIS IS IMPORTANT, BECAUSE OUR FOC US IS NOT JUST A WORK LOAD ISSUE , ALTHOUGH THAT CERTAINLY IS A CONCERN FOR US. BECAUSE WE ARE CONCERNEDABOUT THE EFFECT ON U S AND THE CLERKS, AND WE HAVE EXPRESSED THAT TO YOU, THAT THIS IS NOT, THEY SAY A LLTHAT HAS TO BE DONE IS YOU GET THE CLERK TO SE ND OUT A NOTICE AT A DIF FERENT TIME. I HAVE SAT WITH ALL T H REE OF OUR CLERKS, AND I HAVE G ONE THROUGH ALL OF THIS, AND I DON'T KNOW HOW MANY CLERKS THEY TALK TO AFTER AMENDMENT5, B UT THERE IS A DIF FERENT LANDSCAPE AT THIS POINT THAN THERE WAS, PERHAPS, W HEN THEY WERE TAL KING TO CLERKS AND SAID THAT THIS WAS NO T AN ISSUE, BUT THIS REQUIR ES A DIFF ERENT LEV EL OF NOTICE AT A DIFFERENT TIME , AND T HERULE AS THEY PRESCRIBED IT HERE, ONCE YOU GIVE THAT 60-DAY NOTICE , TH EN YOU H AVE TO GO THROUGH THE SAME PROCESS AGAIN, AT THE END OF THE 6 ON DAYS.

IT DO ESN'T I MPOSE UPON THE JUDGE AN OBLI GATION TO DO IT. IT SAYS THE JUDGE MAY DO IT.

NO, BUT THAT IS THE ONLY WAY THE RULE IS GOING T O BE EFFECTIVE CHOF

CHIEF JUSTICE: THE ONLY WAY THE OOSING SI DE IS GOING TO GET A DISMISSAL IS IF THE OO SING SIDE G IVES NOTICE.

WHAT THIS DOES , I T DOESN'T MATTER , IT SHI FTS THE OOSING SIDE TO THE 60-DAY NOTICE AND IF IT IS NOT DONE AT 10 MONTHS, 12 MONTHS, 1 5 MONTHS OR TWO YEARS , THEN THAT CASE WILL SET THERE AND THEY HAVE 6 0 DAYS FROM THE TIME THAT YOU GIVE THE NOTICE, TO - -

CHIEF JUSTICE: IF SOMEBODY DOESN'T FILE IT AT T WELVE MONTHS, THEN SETS THERE. I KNOW, AND MANY TIMES WE HAVE TALKED ANECDOTA LLY , DON'T YOU NOT HAVE, YOU SET STATUS CONFERENCES. IN YOUR CIRCUIT , DO YOU D O SOMETHING TO TRY TO MO VE THE CASE ALONG?

LET ME EXPLAIN TO YOU EXACTLY, I HAVE LESS CASES ON MY DOCKET NOW THAN I DID TEN MONTHS AG O, AND THAT IS , I HAVE HAD MORE FILI NGS BUT I HAVE GOT LESS CAS ES. THE WAY THAT I DO THAT, THOUGH, IS NOT TO LOOK AT ALL OF MY CASES EVERY MONTH. I DON'T HAVE TIME TO DO. THAT I WOULD HAVE TO SET ASIDE A DAY AND-A-HALF, IN ORDER TO LOOK AT ALL OF THOSE CASES, BECAUS E THAT IS HOW MUCH TIME IT TAKES. I HAVE RIGHT NOW , 9 56 CASES ON MY DOCKET, SO WHAT I DO IS, WHEN A TRIAL GOES AWAY AND I HAVE TIME, I MAKE MYSELF AVAILABLE TO THE OTHER JUDGES. I HAVE TRIED CIVIL CASES , CRIMINAL CASES, I HAVE SET IN LANDLORD TENANT TWO W EEKSAGO. I MAKE MY SELF AVAILABLE TO THEM. FAILING THAT NE ED, THEN IHAVE TIME AVAILABLE , AND I CAN GO THROUGH , AND THE ONLY WAY TO EFFECTIVELY CLEAR YOUR DOCKET IS NOT TO ASKTHE CLERK TO SEND YOU A LIST OF CASES WHERE THERE HAS BEEN NO ACTIVITY, BECAUSE THAT DOESN'T GI VE YOU THE DISTINCTION OF WHERE THEREHAS BEEN ACTI VITY TO MOVE A CASE ALONG. TOUGH TO GO THROUGH EVERYONE OF THESE FILES, AND I WAS TA UGHT BY JUDGE A L COTT WHEN I BECA ME A JUDGE IN 2 40U THOU 2 , THE -- IN 2002 , THE ONLY EFFEC TIVE WA Y TO CLEAR YOUR DOCKET IS TO S ITDOWN AND GO THROUGH EACH CASE AND I CAN DO THAT EVERY MONTH, BUT THAT ME ANS I DON'T HAVE A DAY AND-A-HALF WORTH OF HEAR INGS T HAT MONTH.

IS THERE A RECORDING PROCESS IN THE TENTH CIRCUIT CLERK'S OFFICE, AS TO C ASESWHICH ARE WITHIN OR WITHOUT THE TIME STANDARDS? ANOTHER ONLY THING WE CAN GET FROM THE CLERK, THE ONLY THING ELECTRONCIALLY THEY CAN TELL US IS WHETHER T HEREHAS BEEN NO ACTIV ITY IN A FILE. THAT HE CAN'T TELL US IF IT WAS -- THEY CAN'T T ELL US IF IT WAS FILED BY THE DEFE NSE, IF IT WAS FILED BY -- THAT I S IN POLK A NDHIGHLANDS?

IN POLK AND HIGHLANDS , IT IS WORSE. THEY HAVE NO IDEA HOW TO COMPLY WITH THIS, BUT IN HIGHLANDS , I WENT THROUGH , I SAT IN HIGHLANDS FOR A YEAR , AND I JUST WENT THROUGH EVERY ONE OF THE HA RD FILE COPIES MISS , IN ORDER T O HANDLE IT -- CO PIES , MISS , IN ORDER TO -- MYSELF , INORDER TO HA NDLE IT. WHAT I DO IS START WITH THE OLDEST CASES FIRST AND GET THE FILES OR LOOK AT THEM ON THE SCREEN, SOM E OF THEM I HAVE TO GET THE FILE BECAUSETHEY ARE NOT EVEN ON THE SCREEN YE T, AND I GO THROUGH THOSE.I HAVE A COURT PERSON NEL NOT A CLERK PERSONNEL , AND SOMEBODY THAT I KNOW C ANMAKE A DISTINCTION AS TO WHAT MOVE S THE CASE ALONG , AND I WORK ON IT.

WHAT PERCENTA GE OF T HECASES THAT YOU WORKED THROUGH , COULD YOU TELL US AROXIMATELY , WOUL D HAVE N O ACTIVITY. FOR THAT PERIOD OF T IME.

THE LAST TIME I W EN T THROUGH , 9 50 CASES AROXIMATELY , 59 I S ETHEARINGS ON. IN OTHER WORDS, THEY HAD A SITUATION WHERE THERE WAS NO ACTIVITY MOVING THE CASE ALONG. 25 WERE DIS MISSED.

CHIEF JUSTICE: DID YOU DISTINGUISH, YOU SAID NO ACTIVITY. DID YOU ACTUALLY LOOK TO SEE IF IT WAS MEANINGFUL ACT SNIFT.

OH, YEAH, I LOOK TO SEE WHETHER THE CASE IS BEING MOVED OR NOT, BECAUSEOTHERWISE, YOU HAVE TOLD US IN YOUR CASES, THAT WE NEED TO BE FAMILIAR WITH OUR DOCKETS , THAT WE HAVE TO , WE ARE ENCOURAGED TO HAVE TAKE AN ACTIVE R OLE IN KEE PING OURSELVES INFORMED OF THE CASES ASSI GNED TO THEM , AND THAT THIS RULE IS AN EFFECTIVE WAY TO DO I T. WE FE EL IT IS, AND WE US E IT TO THAT F A SHION . 30 CASES WERE DISM ISSED , WITH A SPON SOR AEAR ANCE , AND ON E CASE WAS SUSPENDED FOR 30 DAYS , BECA USE T HEATTORNEYS AG REED THAT T HEY MIGHT BE ABLE TO MEDI ATE IT , AND THREE CASES WERE AWAITING ORDERS , AND THOSE THREE CASES , ONE OF THEM WAS DISMISSED, AND THE OTHER TWO WERE RESOLVED DUR ING THE TIME THAT I WAS DOING THAT . NOW , ANECDOTALLY , EVERYTHING THEY HAVE DONE IS ANEC DOTAL , WHAT WE HAVE DONE IS BASED ON WHAT OUR ACTUAL WORK IS , AND WHAT WE HAVE CITED IN OUR BRIEF, THE POL ICIES , T HEREASONS, AND SO FORTH , BUT LET ME JUST BASI CALLY TELL YOU , WHAT THEY ARE PROPOSINGCAN BE DONE UNDER THE CURRENT RULE. THEY SAY THERE ARE JUDGES OUT THERE THAT ARE CONCERNED ABOUT GOTCH A TACTICS. JUDGE MENENDEZ IN TA MPA SENDS OUT THIS NOTICE, A NDYOU CAN DO THAT UNDER T HECURRENT RULE. THERE IS NOTHING TO STOP YOU.

CHIEF JUSTICE: IN THECURRENT RULE, THAT IS AN INTERESTING FA CTOR , BECAUSE I KNOW THE JUDGES I N T HEFIFTEENTH CIRCUIT DO THAT . DON'T WE WANT UNIFORM? THERE IS GOTCHA IN DADE COUNTY, IN TAM PA , IN SOMEONE ELSE'S COURT BUT NOT IN JUDGE MENENDEZ'S COURT ? MAYBE THE IDEA TO BRING SOME UNIFORMITY TO T HIS NOTI ON THAT WE ARE GOING TO, MA YBE , ENCOURAGE JUDGE TO SAY ACTIVITY MANAGE THEIR CASES . IT DOESN'T SA Y YOU HAVE T O DO TRITE AT TEN MONTHS.DO YOU IT --

I -- TO IT RIGH T AT TEN MONTHS . YOU DO IT --

I GU ESS DIFFERENT CASES , DIFFERENT CIRCUIT S, I K NOW THAT IT WORKS AND I AM CONCERNED NOT JUST ABOUT THE PERSON WHO GETS THEIR CASE DISMISSED, BECAUSE THEY SAY ANECDOTALLY THEY HAVE PEOP LE THAT ARE TELLING THEM THERE ARE PROBLEMS WITH THIS, AND I UNDERSTAND THE POLI CY REASON FOR HEARING ON THE MERITS, BUT ALL OF T HESEPEOPLE HAVE HAD A JUDGE LOOK AT IT AND WOULD HAVE HAD TO ABUSE THEIR DISCRETION AND THEN AN AELLATE COURT , AND WHEN WE LOOK AT IT, WE DETERMINE WHE THER THEY DID TRY TO MOVE THE CASE .

CHIEF JUSTICE: WHEN YOUGET A CASE THAT YOU SAID HASRECORD ACTIVITY BUT Y OUDON'T THIN K IT IS MOVING ALONG, YOU CALL THAT , HAVE A CONFERENCE ON THAT CAS E.

YE S, I DO.

CHIEF JUSTICE: THAT IS NOT UNDER THIS CURRENT RULE. DO YOU THAT BECAUSE THAT IS GOOD CASE MANAGEMENT .

ABSOLUTELY.

CHIEF JUSTICE: AND I AM STILL TRYING TO SEE HOW THIS RULE WOULD IMPEDE WHAT YOU HAVE AS BEING GOO D CASE MANAGEMENT.

BECAUSE WE ARE GO ING TO HAVE TO SPEND OUR TIME SENDING OUT 60- DA Y NOTICES ON MANY MORE CASES THAT DON'T NEED A 60- DAY NOTICE . THEY ARE ALREADY GO NE. THERE IS NOTHING TO D IDTHAT. THEN WE ARE GOING TO -- TO DO. THAT THEN WE ARE GOING TO HAVE A PROCES S AT THE END OF THAT 6- DAY DAY DISMISSAL. NOW -- THE 60-DAY DISMISSAL. THE ONLY WAY TO DO THAT IS TO DO IT EVERY MONTH AND IF YOU DON'T DO IT EVERY MONTH , THEN CASES ARE GOING TO LANGUISH ON THE DOCK ET.

LE T ME ASK A QUESTION.THERE IS NOTHING THIS RULE THAT WOULD REQU IRE YOU TO CHANGE YOUR PRAC TICE. YES, THERE IS.

WHAT WOULD REQUIRE TO YOU CHANGE YOUR PRACTICE?

WE HAVE TO SEND A NOTICE .

YOU DON'T HAVE TO C HANGE YOUR CU RRENT PRAC TICE, THAT IS WHAT I AM SAYING , OF SETTING THESE CASES THAT ARE LANGUISHING, FOR A CASE MANAGEMENT CONFERENCE , DO YOU?

YOUR HONOR , IF I SET A HEARING ON ALL OF T HESECASES, I MEAN , WHEN WE DO OUR NOTICES , VERY FEW OFTHEM ACTUALLY COME T O HEARING, AND THIS IS A REAL ISSUE FOR US.WHEN WE SET A HEARING, ATTORNEYS HAVE TO COME. PEOPLE HAVE TO PAY THEM TO COME TO THE HEARING, SO WESHOULD ONLY HAVE TO DO THAT IF WE NEED TO DO IT. WE, ALSO , SET ASID E TIME FOR OTHER PEOPLE, THAT OT HER PEOPLE WOULD BE US ING. BUT I THINK THERE IS A M UCH MORE IMPORTAN T, THIS IS A BALANCING ISSUE FOR YOU , AND THERE IS A MUCH MORE IMPORTANT ISSUE. THE CURRENT RULE DOES ENCOURAGE LAWY ERS TO BE DILIGENT. AND WE CI TED, IN OUR BRIEF , THE RULES REGU LATING T HEFLORIDA BAR, AND IT SAYS , PERHAPS NO PROFESSIONAL SHORTCOMING IS MORE WI DELY RESENTED THAN PROCRASTINATION. A CLIE NT'S INTEREST CAN , OFTEN, BE ADVERSELY AFFE CTED BY THE PASSAGE OF TIME O R THE CHANGE OF CONDITIO NS. THAT IS BOTH CLI ENTS. THAT IS THE CLAI MANT AND --

LET ME ASK YOU THIS QUESTION. YOU WERE A FINE , PRACTICING LAWYER FOR A NUMBER OF YEARS.

20 YEA RS .

BEFORE YOUR TIME ON THE BENCH.

YES, SIR.

DO YOU BELIEVE THAT THE PARTY, THAT THERE I S A PLAINTIFF OUT THERE THAT WANTS THEIR CASE JUST SETTING THERE?

WELL , LET'S PUT IT THIS WAY , IT DEPENDS ON WHO T HEPARTIES ARE. I THINK THAT THERE A RELAWYERS WHO DON'T LIKE CERTAIN CASES, WHO DON'T LIKE CER TAIN CLIENTS --

I AM NOT TALKING ABOUT LAWYERS. I AM TALKING ABOUT THE PARTY.

NO. THE PARTY WANTS THEIR CASESTO MOVE.

PARTY, UNLE SS THERE IS SOME KIND OF LAWSUIT THAT ARE YOUR FILE ING --

THE PARTIES --

YOU BELIEVE THAT MOST PEOPLE WANDER IT MOVING ALONG.

THEY ARE THE TRUE VICTIMS. THIS IS WHE RE WE AG REE WITH THEM. THE PARTIES ARE THE VIC TI M.

HAS YOUR COMMITTEE GIVEN ANY THOUGHT AS TO HOW TO AROACH THAT, BECAUSE THAT IS WHAT YOU ARE LOOKING AT . DO WE NEED TO HAVE A DIFFERENT RULE REGULATING LAWYERS?DO WE NEED TO HAVE SOMETHING THIS RULE?WHAT ARE THE THOUGHTS OF YOUR JUDGES, SO THAT CLIENTS CAN'T TOLD, I AM SORE , THE JUDGE -- I AM SORRY , THEJUDGE WON'T HEAR MY CASE, BUT HE HAS THE TRUE FACTS.

WE ADDRESS THAT AND HAV E A VERY ACTIVE PROFESSION IS M COMMITTEE.THE FACT OF THE MA TTER IS, THE DECI SION HERE FOR P FOR A LAWYER IS E ASY. -- THE DECISION HER E FOR A LAWYER IS EASY. YOU HAVE ONE YEAR. YOU SHOULD BE DOING THINGS AT ONE MONTH , TWO MONTHS , FIVE MONTHS, NOT WAITING FOR THE LAST MINUTE TO DO IT. LAWYERS NEED TO BE MORE PROFESSIONAL, AND YOU DON'T DO THAT BY CHANGE THE RULE THAT GIVE S THEM NOTICE A NDHAS THE JUDGE AND THE OTHER ATTORNEY GIVE THEM NOTICE. YOU DO IT BY HO LDING THEIR FEET TO THE FI RE.

CHIEF JUSTICE: JUSTICEBELL.

HIT ON THAT POINT BECAUSE THAT WAS MY QUESTION. THIS SEEMS TO , REA LLY, BE A PROTECTION MECH ANISM THING , JUSTICE CANTERO MENTIONED IT , BECAUSE MY EXPERI ENCE IN THESE DISMISSALS, YOU MAY HAVE A HUND RED CASES SET AND TWO OR THREE ATTORNEYS MAY SHOW UP , AND IT IS OF TEN THE SAME ONES OVER AND OVER AND OVER AGAIN, AND THE PERSON THAT IS REALLY BEING PROTECTED HERE IS THE DILL TEARIOUS ATTORNEY.

THAT IS THE POSI TION THAT HAS BEEN TAKEN BY OTHERS , AND I CERTAINLY , AS A FOR MER ATTORNEY, I MEAN, I PRACTICED FOR 24 YEARS, BUT I DID MED MAL DEFE NSE. I HAD ONE CASE IN 24 YEARS, THAT CAME CL OSE TO BEING DISMISSED FOR FAIL URE TO PROSECUTE, SO THAT SHO WS YOU THAT , AND I HAD THOUSANDS OF CASES, THE LE VEL O F LAWYERS WHO I WAS WORKING AGAINST , WERE A FACTOR , AND THEIR INTEREST IN THOSE CASES , B UTWHEN YOU BEC OME A T RIALJUDGE AND YOU SEE ALL THOSE OTHER CASES THAT ARE OUT THERE , THE , THERE ARE LAWYERS THAT SET ON THESE CASES, AND FOR NO GO OD REASON, AND THEY COULD --

CHIEF JUSTICE: I AM GOING TO HAVE TO ASK JUST IF YOU CAN CONCLUDE.

BUT IF THERE IS A REASON , FOR EXAM PLE THE LAWYER HAS GONE TO IRA Q, HE HAS GOT A PERSONAL PROBLEM, YOU CAN GET A STAY. THE CURRENT RULE PROVI DES FOR THAT. BUT THE RULES - -

CHIEF JUSTICE: THANK Y OUVERY MUCH FOR BEING HERE . ARECIATE IT AND ARECIATE THAT YOU TOOK THE TIME AND INTEREST. THE TIME IS UP. I DIDN'T KNOW IF YOU , I WOULD LIK E TO JUST MAKE SURE THAT THERE WERE, WHAT , WHAT WAS DONE REGARDING CIRCUIT JUDGES AND VETING THIS WITH CIRCUIT JUDGES, IF YOU CAN JUST LET US KNOW , JUST V ERY BRIEFLY, AND THEN WE WILLTAKE A RE CESS.

INITIALLY , THERE WAS OOSITION FRO M THE COUNTY OF THE CONFERENCE OF COUN TY JUDGES, A STATE WIDE ORGANIZATION. JUDGE RONALD LAJONDRE WAS ON OUR COMMITTEE FOR A NU MBER OF YEARS. WE WORKED WITH THE JUDGE AND IRONED OUT THE QUESTIONS THAT HE HAD AND IRONED OUT THAT AND IT DISAEARED AND HAS NOT BEEN A PART OF THIS PROCEED ING.THE REA SON THAT WE INDI CATED ONLY THE TENTH CIRCUIT OOSED, BECAUSE THAT WAS IT IS ONLY OO SITION THAT WAS FILED FROM THE - -

CHIEF JUSTICE: DID THE CIRCUIT CONFERENCE, WHAT CIRCUIT JUDGES HAVE BEEN INVOLVED IN THIS? DO YOU KNOW WHO THEY ARE ? I MEAN, MY CONCERN IS THIS , THAT OBVIOUSLY THIS AF FECTS JUDGES ACROSS THE STATE, AND THAT WE INC LUDE J UDGEMEMBERS, PRECISELY FOR T HEREASON THAT WE EX PECT THERE TO BE , THAT THEY REPRESENTTHE IN TERESTS NOT JUST OF THEMSELVES BUT ALL THE JUDGES .

I THINK THEY ARE G OINGTHROUGH THE RO STER , BUT ABOUT 30 PERC ENT OF OUR COMMITTEE OVER THE YEARS HAS BEEN MA DE UP OF JUD GES ACROSS THE STATE AND ON THE DISTRICT COURTS OF AP PEAL , TRIAL JUDGES BOTH COUNTY AND CIRCUIT COURT , AND THEY AS MR. CL ARKE AND HIS COMMITTEE INDICATED, HAVE BEEN PRE SENT MEMBERS.

HAS THERE BEEN ANY ONGOING EFFORT TO DEVELOP A CASE MANAGEMENT RULE IN THE CIVIL PROCEDURE RULES?

THERE HAS NOT BEEN . WE HAVE NOT BEEN ASKED TO DO. THAT IT IS NOT ON OUR AGENDA. SINCE I WAS ON THE COMMITTEE , I DON'T KNOW WHAT H ASHAENED SINCE THEN T A LSO MIGHT BE THAT THAT IS A RULE OF JUDICIAL ADMINISTRATION RATHER THAN A RULE OF CIVIL PROCEDURE .

THE CIVIL HAS A CASE MANAGEMENT RULE.

YE S AND A STRIC T ONE THAT MOVES THE CASES ALONG , A NDTHAT WOULD BE ANOTHER OPTION FOR US TO LOOK INTO. HOWEVER, WE WERE CONCERNEDWITH THE INTERE ST OF T HEPARTIES, NOT PRO TECTING T HERIGHTS OF LAWYERS , I F LAWYERS ARE PROT ECTED , A S A RESULT OF THE RULE CHANGE , SO BE THAT , BUT THAT SHOULD NOT BE ENO UGH TO OUTWEIGH THE NEED FOR THE CHAN GE.

CHIEF JUSTICE: T HANK YOU VERY MUCH. YOUR TIME IS EXPIRED. WE THANK YOU FOR BRINGING THIS TO THE COURT'S ATTENTION.WE WILL BE CONSIDERING, OF COURSE, A LL OF THE RULE CHANGES, AND WITH THAT , T HECOURT WILL TAKE ITS MORNING RECESS.

MARSHAL: PLEASE RISE.