MARSHAL: PLEASE RISE.HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR, AND GIVE ATTENTION . GOD S AV E THESE UNITED STATES , THE GREAT STATE OF FLORIDA AND THIS HONORA BLE COURT. , SO WE WILL CALL THE NE XT CASE ON THE CALENDAR IN RE AMENDMENTS TO UN IFORM GUIDELINES FOR TA XATION OF COSTS THIS CASE HAS THEDISTINCTION , I THINK , OF BEING THE OLDEST N UMBER CASE IN OUR SUPREME COURT DO CKET . LAST BEING HERE IN 1999 OR 2000, SO WE ARE VERY EXC ITED TO SEE YOU AGAIN THIS MORNING . AND I UNDERS TAND THAT THERE IS GOING TO BE A DIVISION OF YOUR 20 MINUTES . LET'S SEE. MR . CL ARKE , ARE YOU GOING FIRST? ALL RIGHT.AND YOU ARE GOING TO TAKE , WHAT, ARE YOU GOIN G TO TAKE TEN MINUTES, FIVE MINU TES, OR HO W ARE WE GOING TO HANDLE THIS?
YOUR HONOR, MAY IT PLEA SETHE COURT. WHAT I HAD ANTICIPATED DOING WAS PROVIDING SOME VERY BRIEF O PENING COMMENTS, AND THEN DEFERRING TO MR. BEAN AND M R . PARK.
IS EVERYBODY HERE ARGUINGIN SU PPORT OF THE GUIDELINES?
I BE LIEVE THE COMMENTS WEHAVE RECEIVED, WE HAVE ONE OBJECTION TO IT. I THINK MR . H A HN HAS OBJECTIONS AND SOME SUPPORT . AS I UNDERS TAND.
ONE SUPP ORT AND OBJECTION. YOUR HONOR .
CHIEF JUSTICE: AND IT LOOKS LIKE THIS WAS AN UNANIMOUS VOTE OF YOUR COMMITTEE, BUT, YET, THECOURT , S TILL , HAS CONCERNS,AND THAT IS WHY WE ARE HAVING ORAL ARGU MENT.
YES, YOUR HONOR. THANK YOU. I WILL PROCEED. MAY IT PLEASE THE COURT. MY NAME IS ROB CH RAK FROM TALLAHASSEE AND I A M HERE WITH DANIEL BEAN FROM JACKSONVILLE AND MR . PARK , FROM WEST PALM BEACH. I KNOW THAT THE COURT HAS S OME VERY SPECIFIC QUESTIONS ABOUT SOME OF THE ISSUES THAT WE HAVE PROPOSED, AND WE ARE GOING TO GET TO THOSE. WHAT I WOULD LIKE TO DO WITH THE COURT'S INDULGENCE IS TAKE JUST A FEW MINUTES ANDPROVIDE THE COURT WITH A LITTLE BIT OF AN OVERVIEW OF WHAT THE COMMITTEE DID SINCE THIS ISSUE WAS BEFORE THE COURT THE LAST TIME IN 200016789 FIRST OF ALL, ONEOF THE INSTRUCTIONS THAT THE COURT PROV IDED THE COMMITTEEIN THE OP INION OF 20 01 , WAS TO OB TAIN MORE IN PUT FROM MORE DIFF ERENT ORGANIZATIONS AND DIFFERENT INDIVIDUALS, AND SI NCE THAT TIME, I WANT TO LET THE COURT KNOW THATWE HAVE SOLICITED INPUT FROM APPROXIMATELY 80 DIFF ERENT ORGANIZATIONS AND RECEIVED SOME VERY GOOD INPUT FROM A VARIETY OF DIFFERENT ORGANIZATIONS, ENTITIES ANDINDIVIDUALS, THROUGHOUT THE B AR. IN A D DITION , WE HAVE CONDUCTED A SURVEY OF ALL OF THE 49 SF ATS . WE HAVE IDENTIFIED 49 STATES. WE HAVE IDENTIFIED HOW THEY HANDLE THEIR C O STS, AND IN F ACT HAVE FOUND THAT THEY HANDLE IT IN A VARIETY O F WAYS , SOME IN STATUTES , SOME IN RU LES AND SOME IN GUIDELINES, SIMI LAR TO WHAT WE DO HERE IN FLORIDA. IN ADDITION WE HAVE CONDUCTED A SURVEY OF ALL OF THE DCA , DCA OPI NIONS AS RELATES TO COST S AND THIS COURT'S OPINION AS RELATES TO COSTS AND HAD EXTENSIVE DEBATES OVER THE COMMITTEE IN THE LAST WHAT HAS BEEN ALMOST FOUR YEARS AT THIS TIME. NOW , MR. BEAN , I WILL INTRODUCE HIM IN JUST ONE SECOND, BUT HE WAS THE CHAIRMAN OF THE SUBCOMMITTEE FOR THREE YE ARS THAT RELATEDTO THIS ISSUE , AND THERE HAS BEEN EXTENSIVE DE BATE , BOTHAT THE COMMITTEE LEVEL ANDAT THE SUBCOMMITTEE LEVEL , WHICH HE WILL BE AB LE TO TALK TO YOU AB OUT IN RESPONSE TO YOUR QUESTIONS. A COUPLE OTHER GENERAL PROPOSITIONS THAT I WANT THECOURT TO BE AWARE OF , W E ADD HERE TO THE PROPOSITION THAT THESE ARE GUIDELINES. THESE ARE NOT RULES. WE HAVE NOT AD OPTED THEM AS R ULES. THE COURT HAS NOT IMPLEMENTED THEM AS RULES , AND THE DISCRETION TO HAVE THE CATEGORY THAT THE TRIALJUDGE MAIN TAINS DISCRETION TO ACCEPT OR REJECT ANY OF IT AS SPEC IFIC COSTS.
HOW IS THAT MADE CLEAR TO THE TRIAL JUDG E?
YOUR HONOR , I THINK PRIMARILY IT IS MADE CLEAR IN THE SE NSE OF OUR PREAMBLE TO OTHER PROPOSAL, THAT WE HAVE REAFFIRMED THE TRIAL JUDGE AS T O DEVIATE, AND, ALSO , MAY DEV IATE , AND THE CASE LA W THAT HAS COME OUT IS VERY CLEAR. CERTAINLY WITHIN THE DCA CASE LAW, THAT THE TRIAL JUDGE CAN DEVIATE FROM THE GUIDELINES, BUT H E MUST MAKE SOME SORT O F RECOGNITION THAT HE IS DEVIATING AND PROVIDE SOME EXPLANATION AS TO WHY HE IS DEVIAT ING.
I GU ESS MY CONCERN IS, IF WE COME OUT WITH NEW GUIDELINES AS THEY AREPROPOSED NOW AND THEY ARE DIVIDED TO SHALL , MAY , AND SHALL NOT , SHALL IS A MANDATORY TYPICALLY , T ERM , SO HOW WOULD A TRIAL JUDGE UNDERSTAND, WHEN HE OR SHE IS L OOKING AT "SHALL" IMPOSE THE FOLL OWING COSTS , THAT THAT IS ST ILL A DISCRETIONARY FUNCTION?
WE CAN DEAL WITH THAT INA NUMBER OF WAYS , BUT IN OURREPORT, AGAIN , WE HAVE DEALT WITH IT BY RECOGNIZING THAT THE TRIAL JUDGE HAS DISCRETION. IF THE CO URT IS INCLINED TO RECOGNIZE THAT IT I S DISCRETIONARY , WE THINK THAT WOULD BE FINE AND SOME PREAMBLE TO THE GUIDE GUIDELINES , IF THEY WOULD BE APPROPRIATE.
CAN WE M O VE TO SPECIFIC QUESTIONS, BECAUSE WE ON LYHAVE A LI MITED AMOUNT OF TIME, AND I , ONE OF THE THINGS THAT CONCERNED THIS COURT , WHEN , THROUGHOUT THIS WHOLE EPISODE IN WHICH WE HAVE BEEN TRYING TO DEAL WITH THIS PROBLEM , IS THAT THE COURT HAS AL WAYS SEEN THAT, THERE TO BE A NEED FOR COST CONTAI NMENT , AND, NOW, AS I UNDERSTAND WHAT HAS BEEN RECOMMENDED NOW , AS A GUIDELINE , IS THAT THERE IS A RECOMMEN DATION FOR THE TAXATION O F ONE COPY OF THE DEPOSITION IN COURT REPORTER'S PER DI EM , FOR ALL DEPOSITIONS , UN LESS, AND THEN PUT TING THE BU RDEN ON THE OBJECTING PARTY , TO DEMONSTRATE THAT THE DEPOSITIONS WERE NOT REASONABLY NECESSARY. NOW , IN MY EXPERIENCE , IN PRODUCTS CASES OR ME DICAL MAG PR ICK TIS MEDICAL MALPRACTICE CASES, THERE ARE OFTEN LOTS OF NOT ICES OF DEPOSITIONS THAT GO OUT , AND TAKE EVERYBODY THAT HAS BEEN WITHIN 100 YARDS OF THE HOSPITAL , TYPE O F S I TUATION , AND I AM CONCERNED AS TO WHETHER, IF WE ARE NOW GOINGTO PUT THE BURDEN ON THE O THER SIDE TO DEMONSTRATE THE NEGATIVE, IF THAT IS REALLY A COST CONTAINMENT , TO SAY THAT WE ARE GOING TO START OFF FROM A PRESUMPTION THAT EVERYTHING , ALL OF THESE DE POSITIONS ARE GOINGTO BE TA XED , AND SO I HAVE A REAL CONCERN ABOUT THAT.
YES, SIR. IF I CAN ADDRESS YOUR Q UESTION BY TA KING IT SOMEWHAT BROA DLY AND THEN FOCUSING IN PARTICULAR ON THE DEP OSITIONS, THE COMMITTEE HAS STRUGGLED FOR MANY, MANY YEARS , QU ITE FRANKLY , WITH THE PROPOSITION O F COST CONTAINMENT , WITH RE GARD TO THE GUI DELINES . OBVIOUSLY THERE IS TWO , THERE IS A BA LANCE THAT IS NECESSARY. YOU HAVE THE PREMISE THAT YOU WANT TO MAKE A PARTY WHOLE, A PREVAILING PARTYWHOLE , AND THE CASES SPEAKTO THAT AT LENGTH. THEN THE OTHER PART OF THAT IS HOW DO YOU RE DUCE THE COST OF LITIGATION , AND SO AS A PRACTICAL MA TTER , THE COM MITTEE BELIEVES , AND THE MINUTES WILL REFLECT THIS , THAT IT WAS DISCUSSED EXTENSIVELY, THAT , WHEN YOU DECIDE WHETHER TO ADD A COST , TO BE TAXABLE , WHEN YOUDECIDE IT IS GOING TO BE TAX ABLE, YOU DON'T NECESSARILY REDUCE THE OVERALL COST OF LITIGATION. WHAT YOU DO IS D E CIDE THAT THE PREVAILING PARTY WILL OR WILL NOT RECO VER IT. SOMEBODY WILL STILL BEA R THE COST OF CON DUCTING A DEPOSITION. IT JUST WON'T BE THE PREVAILING PARTY.
I UNDERSTAND THAT , BUT WE HAVE GOT SITUATIONS IN MY EXPERIENCE , OF MEDICAL MALPRACTICE CASES. YOU HAVE GOT THE HOSPITAL AND SE VERAL DOCTORS. AND SO THERE IS ACTIVITY BETWEEN THE DOCTORS AND THE HOSPITAL, SO THE DOCTORSSEND OUT A NOTICE TO TAKE DEPOSITIONS TO A LO T OF PEOPLE AT THE HOSPITAL , AND THEN , BUT IT E NDS UP THAT THERE IS NO FINDING OF LIABILI TY. NOW , ALL OF THAT IS GOING TO BE TAXED AGAINST THE PLAINTIFF !
NOT NECESSARILY , YOURHONOR , BECAUSE THERE IS ANOTHER PART OF THIS, AND THAT IS A DETERMINATION THAT THE TAKING OF THAT DEPOSITION WAS REASONABLY NECESSARY , WHI CH WE TALK ABOUT IN OUR RE PORT. NOW, THAT IS A SLIGHTLY DIFFERENT ST ANDARD THAN WHAT WAS PROPOSED BEFORE. IT HAS TO BE REASONABLE, AS TO THE QUANTUM, BUT IT , ALSO , HAS TO BE NECESSARY. THAT IS IT WAS NECE SSARY OR THERE WAS A NEED TO E ITHER PROSECUTOR DE FEND THE CASE, SO THAT IS - - TO EITHER PROSECUTE OR DEFEND THE CASE , SO THAT IS A NEED, A HURDLE THAT WOULD HAVE TO BE OVERCOME BEFORE IT WOULD BE TAXED , SO THAT IS STILL A PREDOMINANT THEM E WITH REGARD TO WHET HER IT IS IN THE SHALL OR MAY CATEGORY. AND MR. BEAN HAS A COUPLE OF COMMENTS AND I WOULD LI KE TO MAKE A COUPLE MORE COMM ENTSIN GENERAL , AND THEN I LL SIT DOWN THIS.THE RE IS A COUPLE MORE THINGS THAT WE HAVE TRIED TO DO ON THE RULES IN GENERAL , THAN IS TO SIMPLIFY THEM. WE DO FEEL THAT THE EX ISTING RULES HAD A FAIR AMOUNT OF VERBIAGE THAT WAS SET FORTH IN THERE, AND WITH REGARD TO DEPOSITIONS FOR EX AMPLE , WE HAVE HEARD A NUMBER OF COMMENTS FROM THE BAR THAT IT REQUIR ES THE COU NTING OF PAGES, TO ULTIMATELY DETERMINE WHAT IS GOING TO BE TAXABLE AND NOT. SO WHAT WE HAVE DONE POTENTIALLY IN THE COURT'SVIEW, AT THE RISK OF BEING A LITTLE BIT TOO BROAD, WE HAVE TRIED TO SIMPLIFY THE APPLICATION , BECAUSE WE DO THINK THAT SIMPLIFYING THE APPLICATION OF THE COST GUIDELINES , IS A WAY TO REDUCE COSTS AS WELL , LESS LITIGATION, LESSON CERTAIN TY.
LET ME ASK YOU ABOUTTHAT. I UNDERSTAND YOUR AR GUMENT THAT , IN HIS ANY LITI GATION , THESE THAT , IN ANY LITIGATION, THESE COSTS AREALREADY INCURRED BY SOMEONE , SO THE QUESTION IS WHO IS GOING TO PAY FOR THE COSTS SO THAT YOU ARE NOT INCREASING THE COSTS OF LITIGATION. WHAT I SE E THAT COSTS OF LITIGATION DO INCREASE, HOWEVER , IS THAT B Y MAKING A LOT OF THESE THINGS PAYABLE THAT WEREN'T PAYABLE BEFORE , FOR EXAMPLE ALL DEPO SITIONS , ALL DOCUMENTS PRODUCED. YOU ARE RAISING THE STA KES, SO THAT THE LOSING PARTY HAS M ORE TO LOSE , AND THEREFORE IT IS WO RTH LITIGATING THE I SSUE OF COSTS , A LOT MORE THAN IT USE D TO BE , KIND OF LIKE ATTORNEYS FE ES. NOW, AFTER THERE IS A VERDICT OR A JUDGMENT, THERE IS A WHOLE S E COND CASE ON THE ISSUE OF ATTORNEYS FEES, WITH EXPERTS ON ATTORNEYS F EES AND A LOT OF EXPE NSES ON BOTH SIDES. IT SEEMS TO ME THAT THAT , NOW , IS GOING TO BE A THIRD PART OF THE LITIGATION , IS THE COSTS , BECAUSE NOW , INSTEAD OF A COUPLE OF THOUSAND DO LLARS THAT MAY BE AT STAKE , IT IS GOING TO BE TENS OF THOUSANDS OF DOL LARS THAT MAY BE AT STAKE , AND NOW IT IS WORTH I N VESTING A LOT OF T IME AND EFFORT AND RESEARCH AND ARG UMENT , EXPERTS ON THE AMOU NT OF COSTS , JUST LIKE IT W AS ON THE AMOUNT OF FEES.THAT IS WHERE I SEE THE DANGER IN INCREASING THE COSTS OF LITIGATION. CAN YOU ADDRESS THAT?
I DON'T NECESSARILY DISAGREE WITH YOUR ANALYSIS.I THINK IT DOES INCREASE THE COSTS. I THINK THE BALANCE THAT YOU STRIKE AND WHAT I S BEING STRUCK , ANY TI ME YOU ADD A COMES THE ADD A COST , IS THAT YOU ARE ATTEMPTING TO MAKE THE PREVAILING PARTY MORE WHOCHLT YOU NEVER QU ITE GET THERE.IN OR DER TO MAKE THE PREVAILING PARTY MORE WHOLE , I THINK YOU DO AS A RESULT , INCREA SETHE IMPORTANCE OF HOW M UCH YOU RECOVER, BECAUSE THEREIS MORE TO BE RECOVERED , I THINK YOU D O POTENTIALLYINCREASE THE AMOUNT OF DISDISPUTE THAT YOU MAY HAVE OVER IT. CHOF OF DISPUTE THAT YOUMAY HAVE OVER IT.
CHIEF JUSTIC E: I THINK YOU HAD QU ESTIONS, AND ITHINK YOU HAD CONCERNS. DID YOU HAVE ONE MORE OVERALL POIN T TO MAKE?
ONE VERY B R IEF THING , AND ONE OF THE THINGS THAT WE HAVE THOU GHT ABOUT NOT AS COMMITTEE BUT CERTAINLY A S CARE OF THE PROCEDURE RULES COMMITTEE, IS CONSI DERATION BE GIVEN BY THE COURT TO WHETHER THEY WA NT TO HAVE THESE GUIDELINES BECOME A PART OF THE APPENDIX TO THE CIVIL PROCEDURE RULES. THE REAS ON, WE ARE DEALINGWITH A 19 81 ADMINISTRATIVE ORDER. IT IS NOT NECESSARILY THE MOST DYNAMIC DOCUMENT IN T ERMS OF THERE ARE A NU MBER OF ITEMS THAT WE HAVE ADDRESSED IN TE RM S OF TECHNOLOGY, AND TECHNOLOGY CONTINUES TO BE A VERY GO OD OPPORTUNITY, A VERY RIPE AREA TO S AV E COSTS, AND SO IF WE HAD A DOCUMENT THAT WAS IN A FORM THAT WE CAN DEAL WITH IN OUR NO RMAL TWO-YEAR CY CLE , WE COULD POTENTIALLY DEAL WITH IT AND UPDATE IT AS WE GO. WITH THAT, YOUR HONOR, I WILL DE FER TO MR . BEAN.
CHIEF JUSTICE: I AM IMPRESSED WITH, I THINK THERE ARE , CONCERNS BUT I UNDERSTAND THAT YOUR COMMITTEE TRAD ITIONALLY HAS BEEN PRETTY EVE NLY BALANCED BETWEEN PLAINTIFFS LAWYERS, DEFENSE LAWYERS , AND EVERYBODY IN YOUR COMMITTEE , ALL , HOW MANY NUMBER , HAVE
72.
ALL AGREED WITH THIS?
IT I S UNANIMOUS. I WILL SAY IT UNDERWENT A F AIRLY ROB UST DE BATE , AND MR . BEAN CAN PROBABLY ATTEST TO.
JUST ONE OTHER QUESTION WITH REGARD TO INCLUDING THESE AS PART O F THE RULESOF CIVIL PROCEDURE, DO WEHAVE A PROCED URAL PROB LEM WITH TRYING TO ATTACH SOMETHING TO THE CI VIL RULES ? ANY RELATIONSHIP BETWEENCOMMITTEES THAT CREATES A PROBLEM?
THE ANSWER IS I DON'T KNOW , YOUR HONOR , AND WE HAVE NOT , ONE OF THE COMME NTS THAT WAS PRESENTED TO THIS COMMITTEE RECENTLY , WAS THE IDEA OF DOING THIS , AND I HAVE LOOKED. THERE IS ONE OTHE R AND END I B IN THE CURRENT RULES APP ENDIX IN THE CU RRENT RULES , DEALING WITH INTERROGATORY F O RMS , AND THERE ARE OTHER APPENDIX ES WITH REGARD TO OTHER RULES, I BELIEVE.
BUT YOU ARE SAYING IF WE COULD AD JUST THEM ON AN ONGOING BA SIS , PEOPLE COULDFIND THEM. WHERE ARE THOSE GUID ELINES , PEOPLE GO.
WE DO THAT ROUTINELY BUT NOT MANY RULES THAT HAVE NEVER BEEN TO UCHED SINCE 1981. THIS ONE COULD STA ND TO BE TWEAKED, IF YOU WILL, JUDGE.
MAY IT PL EASE THE COURT. I A M D ANIEL BEAN, AN ATTORNEY WITH HOLLAND & KNIGHT OUT OF THE JACKSONVI LLE OFFICE. IT IS A HONOR TO BE HERE TODAY , BUT I DID WANT TO TAKE ONE SE COND AND THANK THE OTHER SUBCOMMITTEE MEMBERS THAT HAVE GIVEN SOMUCH OF THE IR TIME TO BE H ERE , SPECIFICALLY MR. KEITH PARK AND, A LSO , I WOULD LIKE TO THANK MADELEINE HOROWITZ AS OUR LI AISON , WHO HAS DONE A TREM ENDOUS J OB TO GE T US TO THIS POINT. I DID WANT T O ADDRESS SOME OF THE QUESTIONS THAT HAVE ALREADY BEEN ASKED BY THE COURT. JUSTICE BELL, THERE IS IN THE CURRENT GUIDELINES , CHIEF JUSTICE SUNDBERG HAD A PREAMBLE, AND WE THO UGHT THE DRAFTERS OF THE RE PORT THAT IS IN FRONT OF YOU TODAY , THAT THAT WOULD BE AN APPROPRIATE PART OR PLACE TO PUT SOME T YPE OF INSTRUCTIONTO THE COURT, OR TYPICALLY , YOU COULD DO A NOTE OR A COMMENT, WHERE WE COULD EXPLAIN, AG AIN, THAT THE TRIAL COURT IS THE GATEKEEPER HERE, RE TAINS THE DISCRETION TO DO WHATEVER HE OR SHE BELIEVES IS APPROPRIATE, AND THEN YOU GET TO THE GUIDELINES .
IF THAT IS THE CASE, THEN I AM NOT SURE WHAT KIND OF EFFECT THESE GUIDELINES HAVE. IF THEY ARE NOT B INDING , IF "SHALL" REALLY DOESN'T MEAN SHALL, THEN WHAT IS THE POINT?
BECAUSE THE TRIAL COURTIS GOING TO BE THERE AND KNOW THE TOTALITY OF THE CIRCUMSTANCES AND BE ABLE TO DO JUSTICE BASED ON THEFACTS THAT ARE BEFORE THE TRIAL COURT
BUT DOES N'T THAT , I MEAN , I AM A LITTLE CONCERNED ABOUT THAT, TOO. WHY ARE WE RELUCKTANT TO IS SAY IF C ERTAIN THINKING S YOU HAVE RELU CTANT , TO SAY IF CERTAIN THINGS ARE GOING TO BE SHALL, I HAVE GOT A CONCERN ABOUT THAT.
YOUR HONOR, CHIEF JUSTICE , IT IS OUR BELIEF THAT THE GUIDELINES WILL BE FOLLOWED SHALL , MAY , OR NOT , BUT WE WANTED TO GIVE THE TRIALCOURT THE DISCRETION TO DEVIATE FROM THESE GUIDELINES, WHEN CIRCUMSTANCES WARRANT THAT. AND, ALSO
DOESN'T THE LANGUAGE THATYOU ARE USING, DO THAT , WHEN YOU SAY THEY SHALL BE ACCEPTED, IF SOMEONE DEMONSTRATES THEY ARE NOT REASONABLY THEY SHALL BE EXCEPTED , IF SOMEONE BELIEVES THEY ARE NOT REASONABLY NECESS ARY?
Y ES, YOUR HONOR, AND THE GUIDELINES HAVEN'T BEEN REVISITED SINCE 1981 , AND WE WANTED TO PROVIDE A MECHANISM FOR THE TRIAL COURT TO BRING THE STANDARDSUP TO CURRENT TECHNOLOGIES.
YOU PERCEIVE THESE TO BE, REALLY , PLACING THE BU RDEN IN THE APPROPRIATE PLACES. IS THAT RIGHT? PLACING THE BURDEN , THAT IS BY USING THESE C LEAR STATEMENTS ABOUT WHAT SHALL BE , SO THAT THE BURDEN , THERE , REALLY, IS GOING TO BE ON THE OBJECT OR , FOR INSTANCE . THE OBJECTOR, FOR INSTANCE.
YES, YOUR HONOR.
IS THAT THE GENERALSCHEME? NOW , LE T ME COME BACK TO THIS ONE QUESTION AND SEE IF YOU CAN ADDRESS IT. I AM VERY IMPRESSED WITH WHAT YOU ALL HAVE DONE AND THE CLARITY OF IT
THANK YOU .
AND THAT CLEARLY IS ONE OF OUR GOAL S IS THAT , IF WE CAN MAKE THIS VERY CLEAR, THEN HOPEFULLY THE LITIGATION WILL NOT BE AS GREAT , AT L E AST , AS IT POTENTIALLY COULD BE , WHEN IT IS A MULINGDED SO RT OF SITUATION. ON A MUDD LED SORT OF SITUATION.ON THE OTHER HAND , AS JUSTICE WELLS POINTED OUT , WE HAVE CONCERNS WITH EFFORTS TO RISING COSTS , R ISING COSTS OF EVERYTHING , BUT THIS IS AN ISSUE WHERE WE REALLY WERE HOPEFUL THAT THE COMMITTEE WOULD L O OK AND SAY , CAN WE C REATE INCENTIVES , ALL RIGHT , SO THAT WE DON'T HAVE THE SIT UATION WHERE , FOR INSTANCE, ONE SIDE THAT SAYS , WELL , YOU KNOW , WE , WE AREGOING TO WIN THIS CASE , AND SO WHY DON'T W E JUST GOAHEAD AND DO EVERYTHING. AND PILE IT ON, KIND OF THING , AND THAT , IN A SITUATION LIKE THAT , CLEARLYTHERE IS NO INCENTIVE, THEN , OKAY, TO LIMIT COSTS , W HICH IS , THAT , THIS IS REALLY THE ISSUE THAT WE WERE HOPING THE COMMITTEE WOULD , R EALLY , T AKE A SE RIOUS LOOK AT AND SEE TO THE EX TENT THAT THEYHAVE HAD, WE ARE TALKING A BOUT A BALANCED COMMITTEE WITH PLAINTIF FS AND DEFENSELAWYERS.
RI GHT.
AND YOU KNOW , THE Y ARE THE ONES THAT KNOW ON A D AILY B A SIS , WHO IS AB USING THESE THINGS, TOO.
RIGHT.
AND HOW , PERHAPS, TO DEAL WITH SOME OF THOSE ABU SES , SO COULD YOU ADDRESS THE ISSUE OF WHETHER THE COMMITTEE TA CKLE ED , IN THIS VIGOROUS DEBATE THAT YOU ALL HAD, THE THOUGHTS OF , ARE THERE SOME INCENTIVES THATWE CAN BU ILD IN , THAT WILL DEAL WITH WHAT WE PERCEIVE TO HAVE BEEN ABUS ES IN THEPAST, THAT , BOTH SIDES E NGAGE IN, YOU KNOW , FOR VARIOUS REASONS. H ELP ME WITH THAT.
YES, YOUR HONOR. FROM THE 1999 PRO POSAL , WE WENT BACK AND TAYLORED IT , SO THAT WE GOT AWAY FROM AND TAILORED IT S O THAT WE GOT AWAY FROM THE STANDARD THAT WAS PROPOSED IN 1 9 99, TO VALI DATE WHET HER COSTSCOULD BE TA XED SUCH AS A DEPOSITION. THE STANDA RD WAS , AS OF '99THAT WAS BEFORE THE COURT , THAT PRODUCED THE 2001 SUPREME COURT OPINION THAT WAS NOT CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE. WE ALL THOUGHT THAT THAT WAS TOO BROAD A CATEGORY, TOO EASY TO SATISFY, S O WE MADE THE STANDARD REASONABLY NECESSARY. WE DON'T BELIE VE THAT THIS PROPOSAL THAT IS BEFORE THECOURT, IS GOING TO MOVE A LITIGANT TO DO SOME TYPE OF DISCOVERY THAT THEY WEREN'T ALREADY GOING TO DO. AND THAT REA CHES JUSTICE WELLS'S QUESTION ABOUT THE HOSPITAL SITU ATION, ABOUT PEOPLE GOING OUT AND TA KING DEPOSITION. THAT IS SOMETHING THAT THECOMMITTEE HAS STRUGGLED WITH AND CONTINUES TO STRUGGLE WITH, THAT THESE DEPOSITIONSARE GOING TO BE TAKEN. THE Y ARE JUST, IN THE COURSE OF A CASE, THEY ARE GOING TO BE TAKEN. WE DO NOT BELI EVE , AND IDON'T BELIEVE THAT YOU CAN TAKE OUR PROPOSAL AND SAY THAT A LITIGANT IN THAT T YPE OF CASE THAT THE JUSTICEDESCRIBED, THAT BASED ON THAT PROPOSAL , THEY ARE GOING TO GO OUT AND TAKE THAT DEPOSITION.THEY ARE GOING TO TAKE IT,EITHER WA Y.
WHAT BOTHERS ME ABOUT THAT , IS THE CONCEPT THAT , IF ALL , IF THE GUIDELINES , AND I AM GOING TO HAVE TO SQUARE IN MY MIND WHAT, WHETHER THESE ARE PROCED URAL OR SUBSTANTIVE, BECAUSE I THINK THAT IS A REAL PROBLEMWHEN YOU START TALKING ABOUT SHELL, AND WE HAVE GOT A WHOLE CHAPTER 57.
YES.
FLORIDA STATUTES , WH ICH THE LEGISLATURE HAS ENACTED .
CORREC T.
BUT IF YOU START TALKING ABOUT ALL DEPOSITIONS , THEN , IT IS A PROBLEM THAT I SEE, TO SAY THAT THE PART Y THAT IS GOING TO BE TAXED AG AINST , HAS THE BU RDEN TO PROVE THE NEGATIVE , THAT IT WASN'T NECESSARY, R ATHER THAN PUTTING , KEEPING THE BURDEN WHERE IT TRAD ITIONALLY HAS BEEN DURING MY PRAC TICE , TO A PERSON THAT IS TRYING T O OBTAIN THE COSTS.
RIGHT . THIS PROPOSAL IS NOT PERFECT , AND OBVIOUSLY MANY LEA RNED M INDS CAN OF FER MANY DIFFERENT TYPES OF SOLUTION. ONE TYPE OF SOLUTION IS TO REMOVE THE PRESUMPTION ENTIRELY AND JUST SIMPL Y SAY THAT , BEFORE COSTS MAY BE TAXED , THE MOVANT HAS TO SHOW, HAS TO M E ET THE BURDEN , AND THEN JUST TAKE OUT, LIKE IN ROME AND NUMERAL I , WHERE WE PUT UN LESS THE OBJECTOR DECIDES IT IS NOT REASONABLY NEC ESSARY AND SIMPLY SAY THAT FOR ALL COSTS , THE M OVANT MUST SHOW IT WAS REASONABLY NECESSARY AT THATTIME, A ND IF THEY DON'T SATISFY THE BURDEN AND NOT BE TAXED BY THE COURT.
WOULDN'T THAT GO AGAINST ALL THAT YOU ALL HAVE DONE , PUTING IN THE TRIAL CATEGORY THAT WE HAVE A STRONGER BELIEF THAT THESE PARTICULAR COSTS SHOULD CA RRY THEPRESUMPTION OF ENTITLEMENT , ALL THE WAY DO WN TO THE "MAY", WHERE IT IS A TO TALLY DIF FERENT CATEGORY , BECAUSEFOR ME READING THESE, THATLOOKED LIKE WHAT THE WORK OFTHE COMMITTEE WAS, THAT YOUSPENT MOST OF YOUR T IME SAYING WHAT ARE WE GOING TO PUT IN WHICH CATEGORY ANDTHAT WE A RE GOING T O G O FROM A STRONG BELIEF IN THE ENTITLEMENT , TO THESE COSTS , OF COURSE , WITH THE PROV ISO OF THE RE CENT REASONABLY NECESSARY, BUT THAT WE DON'T HAVE NE ARLY THE STRONG BELIEF DOWN HERE AT THE TAIL END , AND SO I AM A LITTL E CONCERNED THAT WE WILL JUST BE RIGHT BACK AT SQUARE ONE, IF WE JUST THROW THINGS OPEN N OW. TIME NOT SUGGESTING THAT WE THROW THINGS OPEN. WHAT I AM SUGGESTING , WHAT WE SUGGESTED , WAS THAT YOU HAVE YOUR THREE CATEGO RIES OF SHALL , MA Y OR NOT, AND WITHIN THOSE THREE , THOUGH , THE BURDEN SHOULD , PERHAPS , STILL BE, SHOULD BE WITH THEMOVIE AND THE, JUST NO CLARITY PURPOSES. THE MOVIE AND THE MUST SHOW , AND THE MOVANT MUST SHOW , AND THEN THE OBJECTOR HAS THE OPPORTUNITY TO RE BUT THAT, WHETHER THAT BURDEN HAS BEEN ME T OR NOT , AND THEN IN THE TYPICAL CASE , THE "SHALL" COSTS MAY BE TAXED , THE "MAY" COSTS MAY NOT BE TAXED , UNLESS THERE IS EXTRAORDINARY EVIDENCE , AND THE " NOT" WILL NOT BE TAXED , UNLESS THE EXTRAORDINARY BURDEN IS NOT THERE.
ARE YOU GOING TO GIVE MR . PARK SOME TIME ? YOU ARE NOW IN YOUR REBUTTAL, AND I WAS CONCERNED , THERE ARE CONCERNS ABOUT THE ISSUES OF ATTORNEY TRA VEL TIME AN E X PERT WIT NESS TRAVEL TIME. ARE YOU GOING TO ADDRESS THAT?
AS WE DIVIDED UP THE ASSIGNMENTS, I WAS GOING TO HANDLE THOSE QUESTI ONS AS WELL, BUT IF MR . PAR K, IF YOU AS K A QUESTION THAT IS TOO TOUGH FOR ME , I AM ALLOWED TO PUNT TO MR. PARK .
WHAT ABOUT THIS DE BATE ABOUT ATTORN EY TRAVEL TIME AN EXP ERT NOT ALLOWING TRAVEL TIME?
WELL , AS FAR AS THE EXPERT NOT ALLOWING THE TRAVEL TIME , THE CURRENT RULE IS THAT THEY ARE GENERALLY NOT TO BE TAXED, AND WE HAVE PUT IT IN THE , THIS IS THE EXPERT TRAVEL TIME, W E HAVE PU T IT IN THE "NOT" CATEGORY , THE SA MEWITH THE ATTORNEYS .
THE ATTORNEYS ARE UNDER MAY.
EXCUSE ME?
ATTORNEYS WERE, I THOUGHT , MAY.
NO. NO. AS WE HAVE IT NOW , THE PROPOSAL, AS I UNDERSTOOD THE QUESTION , I MAY HAVE
TRAVEL EXPE NSES.
TRAVEL EXPEN SES. CORRECT.
TRAVEL TIME. AND TRAVEL EXPENSES. I MAY BE, SO TELL ME HOW THOSE
TRAVEL TIME WAS A "N OT" BE TAXED. TRAVEL EXPENSES IS THEY MAY BE TAXED FOR BOTH THE ATTORNEYS AND THE EXPERTS, AND THAT WAS BASED ON THECASE LAW THAT GOES BOTH WAYS ARE AND THE CURRENT GUIDELINES WHIC H SAY GENERALLY NOT BUT IN CERTAIN CIRCUMSTANCES IT MAY BE.
THE NE XT CATEGORY , THE TRAVEL EXPENSES OF THE ATTORNEY AN EXPERTS , MAY BE TAXED.
YES, MA'AM.
WHAT TRAVEL EXPENSES ARE WE TALKING ABOUT? ARE WE JUST TALKING ABOUT TRAVEL FOR DEPO SITION PURPOSES, OR ANY TRAVEL THAT , SAY AN ATTORNEY IS GOING TO GO TO, HAD TO GO SOMEPLACE TO LOOK THROUGH COURT RECORDS OR SOME THING. WHAT T RAVEL TIME , TRAVEL EXP ENSES ARE WE TALKING ABOUT?
THERE IS A CON DITION THAT NO TRAVEL EXPENSES BE REIMBURSED, UNLESS IT IS BEYOND 1 ON 0 M ILES, AND THEN IF YOU BE YOND 100MILES , AND THEN IF YOU AREGOING TO G O BEYOND 100 MILES, YOUR HONOR, THAT IS A GOOD QUESTION. THE COMMITTEE BELIEVED IT WOULD BE WITH THEPROSECUTION OF THE CASE , SO I F A DEFE NSE ATTORNEY HAD TO TRAVEL TO CALIFORNIA TO REVIEW COURT RECORDS IN THEPROSECUTION OR DEFENS E OF THAT CASE , THE N THAT WILL BE RECOVERABLE . THAT WOULD BE THE "M AY" CATEGORY.
IT WOULD COVER LODGING , IT COVERS MEALS. IT COVE RS , JUST
LOD GING AND SHELTER AND RENTAL CAR .
COULD YOU JUST SHARE WITH US A LITTLE BIT OF THE DISCUSSION OR DEB ATE WITH REGARD TO THOSE, IT TO THAT ASPECT, THE EXPENSES , THE ATTORNEY TRAVEL EXPENSES . IT HAS BEEN MY EXPERIENCE THAT ONE OF THE LARGEST AREAS EVER PROFESSIONALS, WHAT THEY LOVE TO DO IS TRAVEL ALL OVER THE WO RLD. I SEE TH IS. I REALLY SEE THIS A S OPENING UP SOME REAL CONCERNS , AND LAWYERS , I T HAS BEEN MY EXPERIENCE, I RUN INTO THEM IN PLACES THAT ARE MUCH BETTER THAN I CAN A FFORD TO STAY, AND IT JUST SEEMS AS THOUGH THAT T HERE IS , THERE M UST BE SOME DISCUSSION.COULD YOU SHARE THAT WITH US.
YES , YOUR HONOR. I BELIEVE THAT WAS IN THE '99 PROPOSAL , THAT WAS THE, I BELIEVE THAT WAS IN THE "SHALL" BE TAXED , AND SO WE BELIEVE THAT THAT WOULD BE A REDUCTION IN COSTS , BY MOVING IT B ACK TO THE "MAY" BE COSTS , AND THEN WE ALSO THREW IN THE WORD "REASONABLE".
BUT BEFORE THAT IT WASNOT PART OF IT, WAS IT?
NO.
BEFORE THE '99 PROPOSAL, IT WAS NOT TAXABLE , WAS IT, GENERALLY? GENERALLY NOT TAXA BLE?
THE CASE LAW THAT IS CITED IN THE REPORT YOURHONOR , GOES BOTH WAYS. SUCH EXPENSES ARE G ENERALLY CURRENTLY NOT TAXED. THAT IS BA RNES VERSUS CITY OF DO YOU KNOW ED I KNOW , 66 SOUTHERN DUNEDIN, 66 SO.2D 574 AND THEN THE BAY H ILL BROTHERS AT 5 20 SO .2D
WE TALK ABOUT TECHNOLOGY OR THINGS LI KE THAT , WH ETHER WE TALK ABOUT INCENTIVES , WOULDN'T THIS REALLY ANDPLACE WHERE, IF WE FUTURE IT IN THE "NO T" CATEGORY , IT WOULD ACT UALLY ENCOURAGE MORE USE OF ACCESS TO INFORMATION , YOU KNOW , V IA TECHNOLOGY AND OTHER MEANS, SHORT OF THE AC TUAL PHYSICAL TRAVEL OF BO DIES AND ALL THE BAGGAGE THAT GOES WITH THAT.
YES . IT WOULD. IT WOULD. BUT IT , THEN , YOU ARE TAKING A WAY FROM THE MAKING THE PARTY WHOLE , WHICH THE CASE LAW ALSO SUPPORTS, BU T YOU ARE ABSOLU TELY RIGHT, YOUR HONOR, IF YOU DID THAT, BUTTHE OTHER THING IS JUST TO POINT OUT ONE OF THE THINGS THAT WE THOUGHT ABOUT AND INSERTED FOR THAT PURPOSE IS U NDER ROMAN NUMERAL I 8-3 , TELEPHONE CONTACT FOR THEUSE OF VI DEO AND TELECOMDEPOSITION. WE HAD HO PED IN THE TELECOMDEPOSITION AND VIDEODEPOSITION, THAT THOSE WOULD BE TAXABLE COSTS AND THAT WOULD BE IN SENT I HAVE FOR THE ATTORNEY NOT TO THE INCENTIVE FOR THE ATTORNEY NOT TO TRAVEL.
MAY I ASK A QUESTION.
CHIEF JUSTICE: AS LONG AS WE STAY WIT HIN OUR 40 MINUTES HERE.
I A M FROM PENSACOLA , AND IT IS HA RD TO GET THAT AREA R ATHER THAN TAMPA OR MI AMI OR OTHER AREAS. HOW WOULD THIS IMPACT QUESTION OF DO YOU RETAIN LOCAL COUNSE L OR , FOR THE LARGER F IRMS , STATEWIDE FIRMS OR NATIONAL FIRMS WHO TYPICALLY C HARGE A MUCH HIGHER R ATE, HOW DOES IT AFFECT THAT IS SUE , BECAUSE IT USED TO BE THAT, IF YOU COULD RETAIN LOCAL COUN SEL AT A LESS RA TE, THERE SHOULD BE SOME INCENTIVE TO DO THAT , AND THEREFORE THE O VERALL COSTS WOULD BE LESS. IS THIS KIND OF GOING AGAINST THAT INCENTIVE?
CAN DIDLY THAT WAS NOT , MR . PARK MIGHT HAVE REC ALLED A DISCUSSION ABOUT THAT HAVING AN IM PACT . I DON'T BELIEVE THAT THAT WAS EVER DIS CUSSED , BUT, THEN AGAIN , THERE , I WOULDLIKE TO TAKE THE OPPORTUNITYTO REIT ERATE THE P OINT THAT , IN ITS CURRENT FORM , WE DON'T BELIEVE THAT ANY OF THESE PROPOSALS ARE GOING TO MOVE A PA RTY TO TAKE DISCOVERY THAT THEY WERE NOT ALREADY INCLINED TO D O
W E HAVEN'T HAD ANY BODY HERE IN PENSACOLA IN 100YEARS.
I A M TALKING ABOUT THE ATTORNEY TRAVEL TIME. I F YOU COULD HI RE AN ATTORNEY IN PENS ACOLA THAT WOULD CH ARGE $250 AN HOUR
CHIEF JUSTICE: WE WILL PUT A FOOTNOTE IN.
THAT IS NOT AN ISSUE OR QUESTION, AS OP POSED
CHIEF JUSTICE: 250 AN HOUR?
NOT THAT MUCH .
I DON'T BELIEVE THAT THE TAXATION OF COSTS PROPOSAL IS GOING TO ENCOURAGE OR DISCO URAGE THE H IRING OF LOCAL COUNSEL. I THINK THAT , B ASED ON MY EXPERIENCE, THAT THE LOCAL COUNSEL IS GOING TO BE HI RED , AS A MA TTER OF COURSE IN MOST CASES, SIMPLY BECAUSE THE LOCAL COUNSEL , IN MY EXPERIENCE, HAS BEEN TREMENDOUS AS SETS , BUT THEY ARE NOT GOING TO, IN MY EXPERIENCE, RE LIEF THE PRIMARY COUNSEL FROM TRAVEL, IF THE CASE IS IN PENSACOLA , IF WE HAVE A PENSACOLA CASE THAT WE ARE RUNNING OUT OF JACKSONVILLE, WE WILL HIRE PENSACOLA COUNCIL, BUT WE WILL STILL BE THERE TO TAKE PENSACOLA COUNSEL, BUT WE WILL STILL BE THERE TO TAKE THE DEPOSITIONS , AND I DON'T THINK TAXATION OF COSTS WOULD SAVE ANYTHING LIKE THAT.
THIS WOULD STIL L BE IN ADDITION TO TRAVEL TIME, ALLTHE EXPENSES , SO THAT IT DOES , DIRECTLY CONTRARY TO JUSTICE BELL'S QUESTION , THAT YOU CAN HIRE LAWYERS F ROM MIA MI! TO TRY CASES ALL OVER THE S TATE, AND YOU ARE GOING TO HAVE TO PAY NO THEIR TRANSPORTATION, UNDER THIS PROVISION , OR AT LE AST YOU CAN BE REQUIRED TO. FOR TRAVEL .
YES , YOUR HONOR, BUT ONE O F THE ARGUMENTS OF THE OBJECTING PARTY COULD BETHAT MIAMI COUNSEL DIDN'T HAVE TO TRAVEL , MR . TRIALCOURT OR MR . AND MRS. TRIAL COURT JUDGE, AND YOU SHO ULDN'T TAX THOSE, AND YOU SHOULD RE DUCE THAT COST , AND THAT MIGHT BE A WI NNING ARGUMENT TO REDU CE THE COST S.
BUT THERE IS NO RULE IN THE STRUCTURE THAT WOULD GUIDE THE TRIAL COURT ALONGTHAT LINE , RIGHT?
THOSE ARE ARGUMENTS THAT WE HOPE THE OBJECTORS WOULD MAKE TO HE LP GUIDE THE TRIAL COURT. I MEAN, FROM THE GET -GO , T HOUGH , THESE EXPENSES , I HOPE THAT WE ARTICULATED IN OUR REPORT THAT THERE IS A TENSION HERE ABOUT REDUCING THE COSTS, AND CANDIDLY , WE DON'T BELIEVE TH AT THE TAXATION OF COSTS AS IT I S IN ANY FORM, UNLESS YOU SAY NO COSTS WILL BE TAXED, ONLY THAT WOULD REDUCE THE COST OF LITI GATION , PERHAPS , BUT MY EXPERIENCE DICTATES THAT THESE COSTS ARE GOING TO BE TAKEN WITHOUT RE VIEW OF THE TAXATION OF COSTS. I MEAN, SHOULD WE TAKE THIS DEPOSITION? CAN WE GET COSTS? OKAY. WE WILL TAKE IT. THAT , MY EXPERIENCE HAS NEVER BEEN LIKE THAT , AND I DON'T THINK THESE RUL ES DO THAT.
LET ME ASK YOU A QUESTION , PHILOSOPHICALLY ASK ONEQUESTION. IT IS A DI FFERENT ISSU E, I WOULD IMAG INE , FOR THOSETHAT ARE BEING RETA INED , ON AN HOURLY RATE , WHERE , AND BEING ABLE TO BILL FOR THEIR EXPENSES , V ERSUS THE PLAINTIFF S' LAWYER WHO HAS TO ADV ANCE COSTS, AND I GUESS THAT IS WHY , AGAIN , I WANT TO MAKE SURE THAT THIS I DEA OF ALLOW ING THESE TRAVEL EXPENSES , WAS AG REED TO BY BOTH SI DES. B OTH PLAI NTIFFS ATTORNEYS AND DEFENDANTS' ATTORNEYS , AS A COMPROMISE POSITION.
I BELIEVE SO. MAY I ASK MY HONORED COLLEAGUE S ? MR. PARK.
IF I COULD JUST SPEAK TO THAT JUST A MO MENT , YOUR HONORS. YES. I THINK AC ROSS THE B O ARD, WE HAD PAR TIES FROM OUR , ATTORNEYS REPRESENTING BOTH PLAINTIFF BAR AND DEFENSEBAR , AND THE V OTE ON THE F INAL THING WAS 42-TO- ZIP,BY THE WAY IN COMMITTEE , BUTI THINK THAT WAS LARGELYBECAUSE , HEY , HERE IS A PACKAGE.THE RE IS A LOT OF THINGS YOU CAN TINKER WITH , AND G IVEN JUDGE LEWIS'S QUESTION WITHREGARD TO THE ATTORNEY FEE , THE ATTORNEY TRAVEL , IT IS A " MAY", AND YOU KNOW , VE NUE SELECTION COULD , IN F ACT , INFLUENCE THAT , COULDN'T WE. IF WE PICK A VENUE WHERE THE ATTORNEY ISN'T RESIGHING , IS HE INTITS TO DO THAT RESIDING, IS H E ENTITLE TO DO THAT? NO , I DON'T THINK SO, AND I THINK WITH REGARDS TO THOSETYPES OF THINGS , YOU HAVE T O TAKE DOW N WHAT YOU ARE GI VEN, AND I DON'T THINK WE CAN PUT DOWN EV ERY INSTANCE ABOUTHOW YOU ARE GOING TO MODERATE, HOW ONE WOULD VIEW THESE KINDS OF
IF YOU HAD A CASE IN PENSACOLA AND SOME ONE HIRED SOMEONE FROM MIAMI , WE ARE NOT ENVISIONING THAT WE ARE GOING TO ALLOW TAXATION OF COSTS TO ATTEND COURT HEARINGS UP IN PENSACOLA.
NO, MA'AM. I WOULD, THERE ARE CASES OUT THERE THAT OBVIOUSLY SAY THAT IS NOT THE WAY
WE HAVE TO BE CAREFUL. WHAT WE ARE REALLY TALKING ABOUT IS A DE POSITION THAT IS TAKEN, HAS TO BE TAKEN OUT-OF-STATE. YOU TRAVEL FOR THAT. THOSE ARE THE EXPENSES THAT WE ARE TALKING ABOUT.
I THINK , FOR INSTANCE, IF YOU HAVE AN ATTORNEY IN MIAMI AND HE HAS A CHOICE OF VENUE BETWEEN PENSACOLA AND MIAMI AND HE PICKS PENSACOLA, A HE IS GOING TO BEAR THE BURDEN OF THOSE TRAVELS.THAT DO ESN'T MAKE SENSE.
WE OUGHT TO MAKE THAT C LEAR , CORRECT SP OO IF THEREIS A WAY OF DOING CORRECT?
IF THERE IS A WAY OF DOING THAT , I THINK IT WOULD BE APPROPRIATE. I A M WONDERING HOW MANY LITTLE THINGS WE CAN PUT IN THERE.
BUT YOUR COMMITTEE F E LT CERTAIN EN OUGH ABOUT THESE EXPENSES THAT, AS YOU SAY I N 1999, THESE WERE IN THE "SHALL" CATEGORY , THAT ATTORNEYS ON BOTH SIDES FELT THAT THOSE PROPERLY SHOULD BE TAXABLE. IS THAT CORRECT?
YES, MA'AM. AND I WOULD , A LS O , P OINT OUTTHAT , THIS IT WAS A TOPIC OF SOME DIS PUTE . AND IT WENT ACROSS THE BOARD IN THE FACT THAT THE CASESTHAT ACTU ALLY END UP AWARDING TRAVEL EXPENSES , ARE THOSE IN WHICH THE , LOOK ING AT THE JUSTICE OF THESITUATION , ONE WOULD WANT TO DO THAT , AND I THINK WE LOOKED AT THE APPROPRIATE EXPENSES AND SA ID WE SHOULD HAVE THAT IN THE " M AY" CATEGORY. I T HINK THAT IS HOW WE THOUGHT IT WOULD GO .
CHIEF JUSTICE: WE ARE SO FAR INTO YOUR TIME BEING EXP IRED HERE , BUT LET'S SEE HOW WE GO. WE HAVE MR . HAHN TO SPEAKFOR TEN MINUTES. MAYBE YOU WANT T O C EDE SOME OF YOUR TIME , SO THAT WE CAN GET BACK ON TRACK .
MAY IT PLEA SE THE COURT . TALLAHASSEE DOESN'T SE EM TO AGREE WITH ME. IT IS MY VOICE. I AM D ALE HAHN AND HERE AS THE PRESIDENT- ELECT OF THE FLORIDA CHAPTER OF THE AMERICAN BOARD OF TRIAL ADVOCATES. IT IS A STATEWIDE, ACT UALLY A NATIONAL ORGANIZATION MADE UP EQUALLY AS PLAINTIFFS LAWYERS AND DEFENSE LAWY ERS. EXPERIENCED TRIAL LAWYERS . IT IS A N INVITATION-ONLY ORGANIZATION. WHEN THIS GROUP KICKED BACK THE IN ITIAL RECOMMENDATIONS , WE APPOINTED A COMMITTEE. I WAS THE CHA IR OF THAT COMMITTEE , ALONG WITH FOUR OTHER LAWYERS, AND W E CANVASS ED OUR MEMBERSHIP ANDCAME UP WITH A RATHER LENGTHY PROPOSAL WHICH WE SUBMITTED DIRECT LY TO THECOMMITTEE , AND I AM HAPPY TO SAY THAT , FLABOTA IS HERE IN SUPPORT OF THE RECOMMEND ED PROPOSALS, BECAUSE AS WE RECEIVED THEM , THEY WERE BASICALLY ADOPTED FROM WHAT WE RECOMMENDED. JUSTICE WE LLS , I AM A PLAINTIFFS LAWYER WHO PRACTICES BY MYSELF, AND I AM DIR ECTLY ON A DA ILY BA SIS , IMPACTED B Y THE DECISIONS OF OTHER LAWYERS, WHETHER ORNOT TO TAKE MULTIPLE DEPOSITIONS OF LIT TLE PARTIES THAT HAVE NO SIGNIFICANCE . I HAVE THOUSANDS ANDTHOUSANDS OF DO LLARS OUT IN COSTS ON ANY PARTICULAR CASE , THAT , AT ANY ONE TIME , AND THESE GUIDELINES , WHILE THEY ARE NOT PER FECT , WHILE THEY DON'T MAKE ME HAPPY
HERE IS MY
YES, SIR .
CONCERN , IS THAT WEHAVE GOT A REAL PROBLEM WITH MIDDLE-CLASS P E OPLE AND ACCESS TO THE COURTS. AND WHEN WE UP THE STA KES O F THEM BEING EXPOSED TO COSTS , BY REASON OF THE FACT THAT THEY HAVE CH OSEN T O TRY TO GO TO COURT, AND THEY LOSE THEIR CASE , I AM NOT AS CONCERNED ABOUT THE LAWYERS OUTLAYING THE COSTS , AS I AM ABOUT THEM LI VING WITH A COST JUDGMENT OF $15,000 OR $20,000 O R $25,000, BECAUSE E VERY DEPOSITION AND ALL OF THE DOCU MENTS AND ALL OF THAT , HAS BEEN TAXED AGAINST THEM.
THAT IS A VERY REAL FE AR. THE ONLY WAY THAT I CANTHINK OF , QUITE FRANKLY , TO ADDRESS THAT ISSUE , IS SIMILAR TO WHAT WE HAVE , WHAT YOU ALL HAVE DONE IN INTERROGATORIES. LIMIT THE NUMBER. IF YOU WANT TO DO IT , YOU SHOULD, I SUPPOSE CAN , JUST SAY, IN ANY PARTIC ULAR CASE , IF THERE ARE TWO PARTIES , DEFENDANT , YOU CAN TAKE "X"NUMBER OF DEPOS ITIONS THAT WILL BE ALLO WED A S COSTS. IF THERE ARE THREE PARTIES , YOU CAN TAKE "Y" NUMBER OF DEPOSITIONS.I CAN'T THINK QUITE FRA NKLY OF ANY OTHER WAY TO ADDRESS THAT ISSUE. I JUST CAN'T DO IT. WHEN THESE ISSUES COME BEFORE THE TRIAL COURT, EVERYTHING IS ALREADY HAPPENED, OF COUR SE, AND IF IS EASIER, REALLY AND IT IS EASIER, REALLY, FOR THETRIAL COURT TO MAKE A JUDGMENT ABOUT WHAT HAS BEEN REASONABLE, IN LIGHT OF THE CASE THAT THEY HAVE JUST TRIED , SO THERE IS SOME WAY TO WHITTLE OUT , EVEN A FTERTHE EXPENSES HAVE BEEN INCURRED, THE REASONABLENESS OF THIS . THE CONCEPT OF "SHALL" AND " MAY" AND THE LIKE, I THINK, ARE ALL RIG HT HERE.
YOU HAVE SOME , I THINK AT THE BEGINNING YOU SAID YOU MOSTLY AG REED YOU HAD SOME CONCERNS. WHAT ARE THE CONCERNS YOU HAVE?
WELL , LITTLE CONCERNS I HAVE, SOME OF THEM ARE ACTUALLY JUST TECHNICAL , AND I WILL BE HAPPY TO POINT OUTTHE WO RDING THAT I DISAGREE WITH, THAT I THINK IS NOT FORWARD-LOOKING.IF WE LOO KED AT R OMAN NUMERAL I -A 3, THE COMMITTEE RECOMMENDS THE USE OF THE WORD "VIDEO". I THINK THAT IS AN OLD TE RM ALREADY, AS MY DAUGHTERS WOULD TELL ME.I THINK IF WE PUT ELECTRONIC IN THERE , RATHER THAN VIDEO , THAT WOULD ENCOMPASS, D VD'S C Ds AND ANYTHING ELSE THAT THE WORLD MIGHT COME UP WITH . BECAUSE IF, WHEN I ORDER A VIDEOTAPED DEPO SITION , VIDEOGRAPHER COMES, BUT THEN IT IS INC UMBENT UPON ME TO SAY I WOULD LIKE IT IN D VD FORMAT, SO WITH THIS I MIGHT ONLY BE ENTITLED TO TA X THE VIDEO COSTS AND NOT THE D VD COSTS.S O I THINK IF WE PUT THE WORD "ELECTRONIC" IN THERE, IT MAY SO LVE SOME THING.
THAT CO VERS DIGITAL?
DIGITAL MIGHT BE. ELECTRONIC IS THE BEST WORD THAT I CAN COME UP WITH . IN REAM BE IN ROME AND NUMERAL IN ROME AND NUMERAL