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In re: Amendments to Florida Rules of Civil Procedure

SC07-173

ALL RISE.
HEAR YE HEAR YE HEAR YE.
SUPREME COURT OF FLORIDA IS NOW
IN SESSION.
ALL WHO HAVE CAUSES TO PLEA,
DRAW NEAR AND GIVE ATTENTION,
AND YOU SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
>> GOOD MORNING.
>> GOOD MORNING.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN,
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS,
WELCOME TO THE ORAL ARGUMENT
CALENDAR, THE FLORIDA SUPREME
COURT FOR WEDNESDAY, JUNE 6th,
FIRST MATTER FOR CONSIDERATION
ARE PROPOSED AMENDMENTS TO THE
RULES OF CIVIL PROCEDURE,
MR. PARK, READY TO PROCEED.
>> MR. CHIEF JUSTICE, JUSTICES,
GOOD MORNING.
ON BEHALF OF THE CIVIL
PROCEDURE RULES COMMITTEE, I AS
THE CURRENT CHAIR THANK YOU FOR
ALLOWING US TO MAKE A
PRESENTATION ALONG WITH THE
BOARD OF GOVERNORS AND THE BAR,
WE A THANKFUL FOR THAT AND THE
GOOD NEWS IS YOU WON'T HAVE TO
HEAR FROM US AGAIN FOR THE REC
CYCLE REPORT UNTIL 2010.
WITHOUT FURTHER ADO THE CHANGES
WE ARE SUGGESTING AT THIS POINT
IN TIME ARE FAIRLY SIMPLE, SOME
OF THEM ARE GLITCHES WE ARE
ATTEMPTING TO CLEAN UP AND SOME
ARE FORMS, ONE OF THIS FIRST
CATEGORIES THAT ARE INCLUDED,
IS A BROAD CONTEXT, ARE CHANGES
THAT WERE MADE WITH RESPECT TO
WHAT PRESIDENT MILES McGRAIN
ASKED US TO DO REGARDING THE
LEGAL NEEDS OF CHILDREN AND
SOME OF THE FORMS AND CHANGES
WERE MADE WITH RESPECT TO THAT.
AND MOST OF THOSE ARE FAIRLY
SIMPLE AND NOT CONTROVERSIAL, A
COUPLE OF THEM ARE.
I THINK WE HAVE SOME COMMENT
WITH RESPECT TO WHY WAS IT
NECESSARY TO HAVE PARENTS, YOU
KNOW, ATTENDING DEPOSITIONS AND
MEDICAL EXAMINATIONS WHEN WE
THOUGHT THAT IS KIND OF
IMPORTANT AS AN INTIMIDATING
ATMOSPHERE AND THOUGHT IT WAS
IMPORTANT FOR PROTECTING THE
NEEDS OF CHILDREN.
>> THE -- THAT SEEMS ALL
ENTIRELY REASONABLE BUT HOW
ABOUT GETTING RIGHT TO THE
ISSUE ABOUT ACTUALLY SETTING
OUT A RULE THAT COMMENTS ON THE
EVIDENTIARY REQUIREMENTS OR NOT
REQUIREMENTS AT A HEARING ON
ATTORNEYS FEES.
>> UN1.526 YOUR HONOR.
>> RIGHT.
THE --
>> LOOKING AT THE RULES, THIS
APPEARS TO BE FIRST OF ALL, IN
ADDITION TO THE SPECIFIC ISSUE
INVOLVED HERE, AT LEAST BY MY
OBSERVATION A HIGHLY UNUSUAL
PRACTICE OF COMMENTING
SPECIFICALLY ON THE EVIDENTIARY
REQUIREMENTS, THAT IS, THAT YOU
DON'T NEED, FOR INSTANCE,
PARTICULAR TYPE OF EVIDENCE AT
A HEARING.
SO I'M A LITTLE CONCERNED THAT
WE WOULD START MOVEMENT IN A
RULE SITUATION AS OPPOSED TO
HAVING A COURT LIKE THE 4th
DISTRICT FOR INSTANCE OR
WHATEVER, SAY, WELL, AS FAR AS
WE'RE CONCERNED, YOU NO LONGER
HAVE TO HAVE EXPERT TESTIMONY
OTHER THAN THE -- PERHAPS, THE
LAWYER, THAT IT INVOLVED IN --
THAT IS INVOLVE IN THE MATTER
TESTIFY AT A HEARING LIKE THIS
AND THEN SEE HOW IT GOES.
YOU KNOW, BUT PUTTING IT INTO A
RULE SEEMS TO BE A HIGHLY
UNUSUAL WAY TO APPROACH THIS.
THAT IS MY IMPRESSION.
SO YOU NEED TO HELP ME AT LEAST
WITH HOW WE CAN JUSTIFY DOING
THIS IN A RULE.
>> WELL, TO BEGIN WITH, IT GOES
BACK -- AND I THINK JUDGE GROSS
OUT OF THE 4th DISTRICT HAD
COMMENTS WITH RESPECT TO THE
ISLAND HOPPER CASE AND I'M NOT
SURE IF THE COURT IS FAMILIAR
WITH THAT LINE OF QUESTIONS AND
WE MENTIONED WITH RESPECT TO
THE ARTICLE IN THE FLORIDA BAR
AND I THINK THAT ROBERT HOUSER
HAD WRITTEN THIS ARTICLE KIND
OF BASED ON THE ISLAND HOPPER'S
CASE AND WHAT CAME OUT OF THAT
AND THE REALIZATION OUT OF THAT
WAS, ALL KIND OF CAME UP OUT OF
SMOKE, IF YOU WILL WITH THE
LYLE CASE IN 1964, IN WHICH
THAT PRONOUNCEMENT WAS MADE --
>>, YOU KNOW, WE HAVE A PRETTY
GOOD VIEW OF ALL OF THE
BACKGROUND SO I DON'T THINK YOU
REALLY NEED TO EXPLAIN ALL OF
THAT.
IT IS JUST THAT, YOU KNOW, WE
HAVE GONE FROM A GROUP OF
LAWYERS SITTING AROUND AND
TALKING ABOUT THIS AND, YOU
KNOW, READING THAT CASE OR
SOMETHING AND SAYING WHY DON'T
WE GO DIRECTLY TO THE SUPREME
COURT AND GET 'EM TO WRITE A
RULE ABOUT THIS AND THERE IS
WHERE I AM HAVING THE
DIFFICULTY.
THIS DOES NOT APPEAR TO ME TO
BE THE APPROPRIATE TOPIC OF A
RULE.
YOU KNOW, WE HAVE POTENTIALLY
ALL KINDS OF THINGS OUT THERE
OCCURRING.
SOMETIMES IN THESE CLASS-ACTION
LAWSUITS, FOR INSTANCE,
OBVIOUSLY WE HAVE ATTORNEYS
FEES AWARDS THAT -- AND THE
PUBLIC PERCEPTION ARE ENORMOUS,
NOT JUST IN THE PUBLIC
PERCEPTION AND ALL OF OUR
PERCEPTIONS.
WE HAVE SMALL CLAIMS COURT
CASES WHERE THE ATTORNEYS FEES
AWARDS ARE ENORMOUS, YOU KNOW,
COMPARED TO THE PIP CLAIM, YOU
KNOW, THAT MAY HAVE BEEN
INVOLVED OR SOMETHING LIKE THAT.
AND SO I'M WONDERING IN A --
YOU KNOW, REALLY WHETHER THE
WAY HAS YET BEEN PREPARED FOR
US TO DO SOMETHING AS DRAMATIC
AS THIS IN A RULE AS OPPOSED
TO, YOU KNOW, LETTING THIS
THING PERCOLATE, 4th DISTRICT
OR THOSE JUDGES HAVE A MAJORITY
TO RULE THAT, YOU KNOW, WE
DON'T -- WE'RE GOING TO RULE
DON'T HAVE TO DO THAT ANYMORE
AND SOMEBODY GOES TO A HEARING
AND SAYS, JUDGE, I'M HERE TO
TESTIFY ABOUT MY HOURS AND THE
FEES THAT I CHARGE AND THAT IS
ALL I'M GOING TO DO.
AND THAT IS -- YOU KNOW, WE
HAVE A TRIAL JUDGE TAKE A GRIP
ON THAT, GOES UP TO THE
DISTRICT COURT OF APPEAL.
THAT IS THE WAY WE LET THESE
EVIDENTIARY THINGS PERCOLATE,
IT SEEMS TO ME, BEFORE WE GET
INVOLVED IN WRITING A RULE.
>> YOU KNOW, HELP ME WITH THIS.
NOT -- YOU HAVE DESCRIBED VERY
ACCURATELY AND WITH THE ARTICLE
AND THE CASE AND THE HISTORY OF
THIS COMING OUT OF THE DCDCA
DECISION BUT WHY WE WOULD DO
THIS SORT OF PREEMPT TORLY IN A
RULE WHEN THERE COULD BE OWE
MANY CONSIDERATIONS THAT -- YOU
KNOW, WHEN IT IS -- LITIGATED
IN AN ADVERSARIAL WAY, THAT WE
-- YOU KNOW, EVERYBODY IN
SELF-INTEREST IS GOING TO GO
INTO ALL THE CORNERS AND THE
COBWEBS AND PULL EVERYTHING OUT,
BUT DOING THIS BY RULE, I'M
REALLY WORRIED.
SO THAT IS -- YOU KNOW, --
>> WELL, THE FIRST THING I
NOTICED, YOUR HONOR, IS THE
LYLE CASE WAS BASED ON JUSTICE
TERRELL'S DECISION, 1935
DECISION AND HE SAID IT WAS NOT
NECESSARY TO HAVE AN EXPERT
OPINION.
WHAT WE FOUND OVER TIME IS THAT
AS FAR AS THE EXPERT IS
CONCERNED, IT -- THE -- IN MANY
CASES, AT LEAST, IN FACT ALL
THE CASES I'M INVOLVED WITH,
THE COURT ITSELF, THAT IS, THE
JUDGE TRYING THE CASE, PROBABLY
HAS AS MUCH, IF NOT MORE
KNOWLEDGE AND EXPERTISE ON
THESE MATTERS THAN ANYBODY
TESTIFYING ABOUT IT.
>> WHAT -- WHAT IF THE JUDGE
TERANNES FERD -- YOU KNOW, THAT
HAS BEEN A PROSECUTOR, A
CRIMINAL DEFENSE LAWYER, AND
NOW THEY ARE TRANSFERRED IN TO
THE PROBATE DIVISION OR THE
FAMILY LAW DIVISION OR GENERAL
CIVIL DIVISION AND GOODNESS,
COME INTO A HEARING LIKE THIS
AND THEY SAY, HELP, YOU KNOW --
I AM BEING PAID A SALARY, YOU
KNOW, IN THE STATE ATTORNEY'S
OFFICE.
I DON'T EVEN KNOW WHAT YOU
MEAN, YOU KNOW, WHEN YOU TALK
ABOUT HOW THESE FEES ARE GAUGED
AND WHETHER WE CAN HAVE A
MULTIPLIER.
>> WELL, AND --
>> MAY I ASK THE QUESTION, IN
WHAT OTHER PART OF THE CIVIL
RULES DO WE HAVE A RULE ABOUT
WHAT EVIDENCE CAN BE INDUCED TO
PROVE SOMETHING?
>> I HADN'T REALLY THOUGHT
ABOUT IT IN THAT SENSE.
I MEAN, WHAT WE GO ABOUT AS FAR
AS THE RULES ARE CONCERNED IS
HOW WE GO ABOUT PROVING THINGS.
I KNOW THAT AS FAR AS THE COMP
STATUTE IS CONCERNED, THE COURT
REFERRED TO THAT AS A RULE.
I MEAN, IT IS A RULE, SO FROM
THE STANDPOINT OF A RULE HAVING
IMPACT HERE AND THE COURT HERE
HOLDING IN THAT 87 CASE, THAT,
YOU KNOW, IT WAS PERFECTLY
APPROPRIATE FOR THE DEPUTY
COMMISSIONERS TO MAKE THAT
CONSIDERATION WITHOUT EXPERT
OPINION, AND WHAT REALLY
HAPPENS IN THESE THINGS IS THAT
IF IT DOES -- NUMBER ONE, IT
SAYS IT IS NOT REQUIRED.
IF THE COURT -- THE JUDGE FEELS
LIKE IT IS NECESSARY TO HAVE IT
DONE THEY CAN CERTAINLY DO THAT
AND IF THE PARTIES FEEL --
>> IF THE PARTY -- IF I AS THE
ATTORNEY WANT TO BRING IN
SOMEONE ELSE TO DO THIS, WOULD
I BE ALLOWED TO UNDER THIS
RULE.
>> YES, MANAGEMENT.
IT'S STRICTLY PERMISSIVE, IF
YOU WILL THINK PARTIES CAN
BRING IT IN.
THE PROBLEM IS WE HAVE SEEN IT
OVER --
>> IF WE ARE TRYING TO TAKE THE
RULES TO OVERRIDE CASE LAW, IS
THAT WHAT -- WHAT THIS IS
REALLY DESIGNED TO DO.
>> WELL, IN THIS SENSE I
SUPPOSE THAT IS TRUE.
EXCEPT WHEN THE WHEN THE
SUPREME COURT LOOKED AT THIS
UNDER JUDGE TERRELL'S DECISION
IT WASN'T NECESSARY TO HAVE AN
EXPERT OPINION AND THEN THE
LYLE DECISION CAME ALONG AND
THAT SEEMED TO SETTLE YOU SAY A
PROGENY FROM THAT.
>> THAT IS A DISTRICT COURT OF
APPEALS OPINION, THOUGH, THERE
IS NO REASON I LAWYER CAN'T SAY,
HEAR IS WHAT JUSTICE TERRELL
SAID OF THE FLORIDA SUPREME
COURT AND THAT'S GOOD ENOUGH
FOR ME AND LET'S GO THAT WAY.
>> I SUPPOSE THAT'S --
UNFORTUNATELY THAT HAS NOT
HAPPENED AS FAR AS THE CASE LAW
THAT HAS COME DOWN AND REALLY
WE LOOKED AT IT AS A COST-SAVING
MECHANISM MORE THAN ANYTHING
ELSE, AND IN MOST CASES ANYBODY
CAN BRING IN EXPERTS AND
DOESN'T TAKE THAT ABILITY AWAY
--
>> HOWEVER, HOWEVER, MY CONCERN
IS, YOU ARE REALLY DOING AWAY
WITH A NEED FOR A HEARING.
I MEAN -- LOOKS AT IT --
GETS THE FILE, LOOKS AT IT AND
DEFINES WHAT HE BELIEVES IS
GOING ON IN THE COMMUNITY AS
FAR AS ATTORNEYS FEES ARE
CONCERNED, AND HE SETS A DATE.
NOW MY PROBLEM WITH THAT IN THE
MODERN WORLD IS THAT PROBABLY
THESE ATTORNEYS FEES AMOUNTS
NEED TO BE CONTESTED.
NOT LESS, AND SO WHAT WE ARE
DOING, IT SEEMS TO ME IS
SETTING UP A PROCEDURE, IN
WHICH YOU ARE GOING TO HAVE
FEWER CONTESTS ABOUT THE AMOUNT
OF FEES AND THE FEWER ABILITIES
TO DO IT.
SO I HAVE A PROBLEM.
>> FROM OUR PERSPECTIVE WE
DIDN'T LOOK AT IT IN THAT
FASHION, WE LOOKED AT IT IN
WHETHER OR NOT IT WAS REQUIRED,
IT IS CERTAINLY PERMISSIVE AND
FROM THE STANDPOINT OF WHAT
EVIDENCE GOES ON, THE PARTIES
ARE FREE TO DO THAT AND PROVE
IT UP ANY WAY THEY WISH, UNDER
COMPETENT SUBSTANTIAL EVIDENCE
YOU WOULD STILL HAVE TO HAVE
THE ATTORNEY TESTIFY ABOUT HIS
TIME AND WHAT THE VALUE OF HIS
SERVICES WERE.
I DON'T THINK YOU CAN GET
AROUND THAT.
>> THIS DOES NOT --
CONTEMPLATES STILL HAVING A
HEARING?
>> YES, MANAGEMENT.
>> THAT DOESN'T A-- YES, MA'AM.
>> IT DOESN'T APPLY TO IN MY
FEELING THE BIGGEST ABUSE IS
THE FAMILY LAW CASES AND YOU
ARE THERE FROM THE CIVIL RULES
AND WAS ANY DISCUSSION MADE AS
TO WHAT -- THE APPROACHES IN
FAMILY CASES.
>> THE FAMILY LAW CASES, THERE
IS A STATUTE IN PLACE WITH
RESPECT TO THAT, THEY NO LONGER
HAVE TO BRING IN EXPERT
TESTIMONY FOR THAT.
>> I THINK THIS IS WHERE I WILL
HAVE THE DIFFICULTY, WHICH IS I
HAPPEN TO THINK IT IS A GOOD
IDEA NOT TO REQUIRE PEOPLE TO
BRING IN THEIR ATTORNEYS,
BECAUSE IT BECOMES -- YOU KNOW,
-- I MEAN, I THINK IN THE REAL
WORLD WE KNOW WHAT HAPPENS AS
FAR AS THE -- FOR THE
REASONABLENESS, BUT I DO THINK
THE IDEA THAT YOU HAVE GOT,
AGAIN IF YOU HAVE A STATUTE FOR
THE FAMILY CASES, WE HAVE A
CASE FOR WORKERS' COMP TO
ACTUALLY CARVE THIS OUT AND PUT
IT IN A RULE BECAUSE EVERYONE
THINKS IT IS A GOOD IDEA MAY BE
BAD PRECEDENT FOR WHAT WE USE
OUR RULES OF PROCEDURE FOR AND
THAT IS WHAT A LOT DWHOFTIONS
ARE ABOUT, YOU DON'T -- SEEMS
LIKE YOU STILL DON'T SEE THAT
THAT IS A PROBLEM.
THAT IS, THAT WE BE DOING
SOMETHING WE REALLY HAVE NEVER
DONE BEFORE, IN THE CONTEXT OF
THE RULES.
>> DO YOU SEE THAT FROM THE
POINT OF VIEW OF THE COURTS --
>> TO BE QUITE FRANK WITH THE
COURT I HAVEN'T LOOKED AT THE
RULES TO FIGURE OUT WHERE EMS
THAT HAS BEEN DONE WITH RESPECT
TO HOW WE GO ABOUT PROVING UP
WHATEVER MIGHT NEED TO BE
PROVED UNDER A CERTAIN SET OF
CIRCUMSTANCES, WE HAVE WAYS OF
KEEPING EVIDENCE OUT, AND
WHETHER OR NOT SOMETHING IS
REQUIRED OR NOT AND HOW WE GO
ABOUT PUTTING ON EVIDENCE.
>> MR. PARK, WITH OUR
ASSISTANCE, YOU HAVE UTILIZED
YOUR TIME, WE'D LIKE YOU TO
SAVE A COUPLE OF MINUTES, AND
LIKE YOUR THOUGHTS, AND YOU
KNOW WHERE THE COURT IS COMING
FROM AND GIVE YOUR BEST SHOT ON
REBUTTAL.
>> THANK YOU, YOUR HONOR.
>> MAY IT PLEASE THE COURT,
MARC GOLDMAN HERE TO ARGUE IN
OPPOSITION TO THE PROPOSED RULE
1.526.
I'M NOT GOING TO SPEND A LOT OF
TIME ON MY FIRST POINT WHICH IS
THE JURISDICTION AND THE LACK
OF AUTHORITY FOR THE RULES
COMMITTEE.
IT SEEMS THAT YOU HAVE ALL KIND
OF GLEANED WHERE I'M COMING
FROM ON THAT TO MENTION, THERE
IS A CASE FROM THIS COURT IN
1987, THE CRITICAL EN TON,
ORANGE BLOSSOM CASE THAT SAYS
EXPERTS ARE REQUIRED.
SO IF IT WERE TO BE EXPERTS
WERE NOT REQUIRED THIS IS NOT
THE PROCESS TO BE USED.
THERE IS AN APPELLATE PROCEDURE
AND YOU CAN'T TAKE A PROCEDURE
RULE AND --
>> TAKE YOUR TIME AND TELL US
WHY IT'S BAD.
>> THAT IS MY SECOND POINTED.
>> THE RULE AS WRITTEN IS INEE
EFFECTIVE AND AMBIGUOUS AND
DOESN'T SAY EXPERTS ARE NOT
REQUIRED, ARE NOT ALLOWED, IT
SAYS THEY ARE NOT REQUIRED
UNLESS THE COURT ORDERS THEM TO
BE REQUIRED.
IT IS ABSOLUTELY IMPRACTICAL TO
THINK THAT A JUDGE EXCEPT IN
RARE CASES WHEN A MOTION FOR
FEES IS FILED AND HEARING DATE
IS REQUESTED IS GOING TO GO,
YES, I REMEMBER THAT CASE, WE
NEED EXPERTS IN THAT CASE.
SO WHAT YOU ARE DOING IS
CREATING MORE HEARINGS AND MORE
LITIGATIONS.
ONE OF TWO THINGS WILL HAPPEN.
ONE, THE MOVING PART, WHEN HE
FILES HIS MOTION FOR FEES, IS
ALSO GOING TO FILE A MOTION TO
REQUIRE EXPERTS.
WE'RE GOING TO HAVE ANOTHER
HEARING ON THAT.
THEN WE'RE GOING TO HAVE A
DIVERSETY OF RULINGS BY THE
COURTS ON WHETHER THE COURT
REQUIRED IT.
AND THEN WE'LL HAVE APPELLATE
CASES ON THAT.
THE OTHER POTENTIAL IS, THE
MOVING PARTY DOESN'T FILE THAT
MOTION.
COMES INTO COURT WITH ITS
EXPERT.
THE NONMOVING PARTY, MAY OR MAY
NOT BRING AN EXPERT.
IN THE CASE WHERE THE NONMOVING
PARTY DOESN'T BRING AN EXPERT,
THE PREVAILING PARTY IS GOING
TO SEEK TO TAX THE COST OF HIS
EXPERT, AND THE NONMOVING PARTY
IS GOING TO GO, WAIT A SECOND,
JUDGE, YOU DIDN'T ENTER AN
ORDER REQUIRING THIS.
DON'T TAX IT.
THEN WE'RE GOING TO HAVE MORE
APPELLATE CASES ON THAT.
SO, IT IS MY POSITION THAT THE
PURPOSE BEING SOUGHT BY THE
RULES COMMITTEE IS GOOD.
NOT TO ELIMINATE EXPERTS.
BUT, IN GENERAL, IT IS NOT
BEFORE THE COURT TODAY BUT I'M
SURE YOU SAW MY THUMBNAIL
FOUNDATION FOR A RULE,
ENCOMPASSING THE PROCEDURE OF
ALL ATTORNEYS FEES, DISCOVERY,
EXPERTS AND TIMETABLES.
THIS IS SOMETHING THAT SHOULD
BE DONE TO HELP THE COURTS AND
THE LITIGANTS BUT THE RULE AS
WRITTEN, I DON'T BELIEVE YOU
HAVE JURISDICTION, IS IMPROPER
AND, B, WILL CAUSE MORE
PROBLEMS THAN IT SEEMS TO
ALLEVIATE.
>> LET ME ASK YOU A QUESTION
ABOUT THE JURISDICTION AND THE
PRO PRYTY OF US CONSIDERING AS
A RULE.
IT SEEMS TO ME ONE OF THE
COMPLICATIONS INVOLVED IS THAT
IN ORDER TO BRING UP A CASE
WHERE WE COULD RECONSIDER
WHETHER EXPERT TESTIMONY IS
REQUIRED, LAWYERS WILL HAVE TO
TAKE A BIG RISK WHICH IS, GO TO
A HEARING AND DON'T TAKE AN
EXPERT WHEN THE SUPREME COURT
LAW SAYS AN EXPERT IS REQUIRED.
THE TRIAL JUDGE IS GOING TO SAY,
NO, YOU NEED AN EXPERT, I'M
BOUND BY THE LAW AND THE
APPELLATE COURT WILL SAY THE
SAME THING AND MAY OR MAY NOT
CERTIFY A QUESTION TO THIS
COURT.
AND THERE WON'T BE REALLY ANY
-- SEEMS TO ME, ANY CONFLICT,
AND SO, THE CHANCES OF US
TAKING IT ARE SLIM AND THEN THE
CHANCES OF US TAKING IT AND
REVERSING A 1987 CASE ARE SLIM.
>> RIGHT.
>> AND SO, THAT IS WHY WE
HAVEN'T REALLY HAD A CASE COME
UP, BECAUSE LAWYERS AREN'T
WILLING TO TAKE THE RISK OF
EXPENDING ALL THESE ATTORNEYS
FEES AND THEN GOING TO A
HEARING WITHOUT AN EXPERT AND
TAKING THE CHANCE THAT THEY ARE
GOING TO GET ATTORNEYS FEES ANY
WAY BECAUSE THEY'LL CHANGE THE
LAW AND SEEMS TO BE WHY IT'S
COMING UP IN THE VENUE.
>> IF I CAN COMMENT I AGREE
WITH WHAT YOU ARE SAYING AND
FIRST IT DOESN'T IN ANY WAY
CHANGE THE FACT THE RULES
COMMITTEE IS NOT EMPOWERED WITH
THE AUTHORITY TO CHANGE
SUBSTANTIVE LAW BUT TO GET TO
THE HEART OF YOUR QUESTION, HOW
COULD THIS BE ACHIEVED?
AND YOU HIT THE NAIL ON THE
HEAD.
THE GREAT LIKELIHOOD IS NO
JUDGE IS GOING TO REVERSE
EXISTING LAW.
SO IT WOULD HAVE TO COME UP AS
A CERTIFIED QUESTION.
BUT IT DOESN'T HAVE TO BE THE
MOVING PARTY'S ATTORNEY THAT
COMES IN AND TAKES THE CHANCE
OF OF, JUDGE, GIVE ME MY FEES,
I DON'T HAVE AN EXPERT.
THE NONMOVING PARTY CAN SAY, WE
ARE NOT BRINGING AN EXPERT, AND
WE WOULD LIKE YOU, JUDGE, TO
CERTIFY THE QUESTION.
AND IT WOULD HAVE TO GO THROUGH
THE PROCESS, THEORETICALLY FROM
CIRCUIT TO DCA AND HOPE DCA
WOULD TAKE IT AND THEN AT SOME
POINT GET TO YOU ALL.
THAT IS THE PROCEDURE THAT
WOULD HAVE TO OCCUR.
BUT THAT DOESN'T CHANGE THE
FACT THAT IT CAN'T BE DONE THIS
WAY.
>> JUST ON THAT, I MEAN,
BECAUSE THIS HAD TO DO WITH
COSTS AN ATTORNEYS FEES, I MEAN,
THERE ARE SEVERAL RULES THAT
HAVE TO DO WITH COSTS AN
ATTORNEYS FEES AND CORRECT ME
IF I'M WRONG, WHERE IS THE PART
THAT TALKS ABOUT WHAT TYPE OF
COSTS ARE TAXABLE, AND IS THAT
IN THE RULE, OR WHAT DID WE DO
WITH THAT.
>> I HAD A FOOTNOTE IN MY
MEMORANDUM AND HAS ALWAYS BEEN
MY OPINION COSTS ARE NOT WITH
IN THE PURVIEW OF EXPERT
TESTIMONY, THAT IS IN THE SOLE
DISCRETION OF THE COURT AND TO
ANSWER YOUR QUESTION, JUSTICE
PA RAENT WE ARE GETTING ONTO --
JUSTICE WA RAENT, WE ARE
GETTING ONTO THE UNIFORM
TAXABLE GUIDELINES, AND THEY
ARE BEAR.
-- BARE, THERE ARE SO MANY --
>> WE DEALT WITH THAT ISSUE
RECENTLY AND AMEND THE TAX
GUIDELINES A COUPLE OF YEARS
AGO.
>> I DON'T THINK IT IS --
>> [LAUGHTER].
>> WE REALLY HAVE NOT
COMPREHENSIVELY --
>> SO THE COSTS ARE -- REALLY
DON'T AFFECT US, OUT THE IS
CALLED EXPERT TESTIMONY ON
COSTS AN ATTORNEYS FEES IT IS
REALLY ATTORNEYS FEES.
>> JUST, I KNOW YOU ARE OUT OF
YOUR TIME.
JUST -- CAN I ASK ONE QUESTION
ON THIS?
>> IN THE REAL WORLD, THOUGH,
MY PERCEPTION IS THAT, AGAIN,
EVERYONE FEELS THEY'VE GOT TO
GO AND FIND AN EXPERT AND
EVERYONE IS DOING IT FOR EACH
OTHER AS A FAVOR, AREN'T WE
ALREADY CREATING A LAYER OF
ACQUIRING OTHER ATTORNEYS TO
COME IN TO SUPPORT THE FEES.
>> MY ANSWER TO THAT IS, NO,
BECAUSE PARTIES REALLY WANT TO
AVOID THAT.
AND THE GREAT PERCENTAGE OF
CASES ARE NOT CONTENTIOUS IN
TERMS OF THE ULTIMATE AMOUNT
BUT ONLY IN PEOPLE BEING
STUBBORN.
THEY CAN RESOLVE THESE THINGS.
THEY CAN WAIVE EXPERTS.
I DON'T TESTIFY ON $10,000
ATTORNEYS FEES CLAIMS, I'M
WASTING THE COURT'S TIME AND
THE OTHER SIDE'S MONEY WHEN I
DO THAT.
THESE THINGS SHOULD BE RESOLVED
AND IF WE HAVE THE PROCEDURAL
RULE I PROPOSE IT WITH REQUIRE
THE PARTIES TO GET THAT DONE
BEFORE WE GOT TO THE EXPERTS
AND TO HEARING.
>> THANK YOU, THANK YOU VERY
MUCH, MORE COMING UP.
>> HAS BEEN AN HONOR AND A
PLEASURE BEING HERE TODAY.
>> MAY IT PLEASE THE COURT,
VERY BRIEFLY.
>> LET YOU HAVE TIME TO TELL US
WHY WE NEED THE RULE.
>> GOSH, I THINK I GOT THROWN
UNDER THE BUS ALREADY!
>> SLAV LAUGH.
>> -- [LAUGHTER].
>> NUMBER ONE, HOW DO WE CHANGE
IT AND NUMBER 2, WITH RESPECT
TO WHAT HAPPENS NOW IT NEVER
GETS ANYWHERE BECAUSE IF YOU
FAIL TO PUT ON THE EXPERT AND
YOU PUT ON YOUR TESTIMONY, WITH
REGARD TO THE COMPETENT
EVIDENCE OF SOMEBODY TESTIFYING,
IT GOES TO THE APPELLATE COURT
BECAUSE DUNLT HAVE THE EXPERT,
APPELLATE COURT SENDS IT BACK
AND THEY PUT ON THEIR EXPERT.
IT -- NOTHING EVER GETS --
>> I'M SURPRISED AT THAT, BUS
IF YOU DON'T SATISFY YOUR
BURDEN IT IS MOOING THE CASE
LAW IS THAT --
MY UNDERSTANDING IS THE CASE
LAW IS YOU DON'T HAVE THE
EVIDENCE, YOU DON'T GET THREE
TRIALS TO HIT THAT.
>> THEY SEND IT BACK, EVERY
CASE I LOOKED AT IN WHICH
SOMEBODY FAILED TO PUT ON
EXPERT TESTIMONY THEY SENT BACK
FOR -- TO DETERMINE WHAT THE
PROPER FEE OUGHT TO BE AND PUT
ON THE EXPERT AT THAT POINT.
THAT IS WHAT THE CASES HOLD.
>> YOU MENTION THERE IS A
STATUTE NOW THAT SAYS IN FAMILY
LAW CASES,.
>> YES, MANAGEMENT.
>> THAT THERE IS NOT A
REQUIREMENT OR YOU CAN'T PUT --
HOW DOES IT READ.
>> HARD PRESSED TO REMEMBER HOW
IT SAYS -- DOES NOT REQUIRE TO
PUT ON EXPERT TESTIMONY.
>> SINCE EVERYBODY AGREES THAT
THE VOTE 30-0, BOARD VOTE, 35-0,
SEEMS NOBODY LIKES THAT -- SEE
THERE MAY BE PROBLEMS, WHY NOT
HAVE IT DONE THROUGH THE
STATUTES?
>> I'M NOT SURE AT WHAT -- WHAT
VEHICLE WE USE IN ORDER TO
PERHAPS CHAPTER 92.
I'M NOT SURE WHERE IT WOULD GO
WITH RESPECT TO THAT.
>> WELL, IT WAS AN OFFER OF
JUDGMENT CASE, YOU KNOW --
>> RIGHT.
>> ALREADY LEGISLATED IN THAT
AREA.
SO IT IS JUST A THOUGHT.
I DON'T KNOW WHERE WE ARE GOING
TO GO BUT I WONDERED IF THAT
HAD BEEN CONSIDERED.
>> REALLY HADN'T BUT MIGHT BE
THE ONLY WAY TO GO IF IT -- IF
IT IS NOT APPROPRIATE TO HAVE
IT AS A RULE AND PROCEDURE IN
THE VAIN.
BUT, WHAT WE BROUGHT ALONG, AS
FAR AS THESE COSTS AND HOW WE
ARE DOING THIS, WE BROUGHT UP A
COTTAGE INDUSTRY WITH PEOPLE
TESTIFYING ABOUT THESE THINGS
AND HOW THIS IS ALL DONE AND
THIS WAS IN EFFECT TO TRY AND
CHANGE IT TO REDUCE COSTS, TO
HELP OUT WHAT OUR SYSTEM IS
DOING.
>> MR. PARK, MR. GOLDMAN LET US
THANK YOU ON BEHALF OF THE
COURT.
YOU DO THIS GRATIS AND SO THE
-- FOR THE GOOD OF THE SYSTEM
AND THAT IS WHAT IT TAKES TO
KEEP US WHERE WE SHOULD BE AND
WE REALLY THANK YOU FOR THIS
TIME YOU PUT INTO THESE AND WAS
IT WAS NOT MEANT TO THROW
ANYBODY UNDER THE BUS AND WE
ARE EXPLORING IT AND I KNOW YOU
UNDERSTAND THAT AND IT WAS A
CONCERN OF THE COURT AND THANKS
FOR SHARING YOUR VIEWS AND
HELPING US REACH A DECISION.
>> I DO, YOUR HONOR AND I WAS
BEING FACETIOUS.
>> I KNOW YOU WERE.
>> THANK YOU.
>> OKAY.
>>