A personal injury case is typically resolved in one of two ways: A pre-litigation settlement in which no lawsuit is required, or through litigation. For example, if an injured automobile accident victim believes that the pre-litigation offer was too low, an aggressive attorney will then file the action in Court and it enters the litigation phase. The litigation phase can take much longer, as an original complaint must be filed, depositions and other discovery conducted, and if still not resolved then mediation and potentially a jury trial. When I started as a personal injury attorney some 26 years ago, only about 15-20% of all cases went through litigation. Today, that number is more like 50-60% that are filed as a lawsuit, as insurers across the board frequently engage in low-ball tactics.
In my last blog, I wrote about how pleased I was that my litigation cases moved so well even during the worst days of Covid-19 and that Zoom and other video conference platforms proved to work very well for things like depositions and mediations. However, my one concern was the certain backlog of cases once restrictions were lifted that had not been resolved after mediation and were ready to be set for trial. Recently, the Florida Supreme Court and local Circuits have issued revised Administrative Orders to deal with this issue, which includes the following:
Counsel for the parties and pro se individuals who are representing themselves in “General Civil Cases” and in “Streamlined Civil Cases” are hereby advised that the undersigned chief judge will be entering administrative orders in conformity with the mandates in AOSC20-23, Amendment 11, and that the presiding judges in the civil divisions will be required to issue comprehensive case management orders in their cases. The Supreme Court order requires such orders in cases filed before April 30, 2021 to be issued within 30 days of service of the complaint on the last of all named defendants or by May 28, 2021, whichever date is later…
Consequently, the presiding judges may be forced to issue case management orders in cases without a noticed hearing and without any input from the litigants. It should be apparent from a review of AOSC20-23, Amendment 11, that such an…..order will contain deadlines for service of complaints, service under extensions, adding new parties, completion of discovery, objections to pleadings, pretrial motions, and mediation. The order must also address setting trial even though the case may not be at issue. (Emphasis added)
These recent orders from the Florida Supreme Court and Sixth Judicial Circuit (Pasco and Pinellas) are extreme, unprecedented, and music to my ears! I’ll explain. I believe that many insurers are using the Covid-19 trial docket backlog as a weapon to low-ball Plaintiffs, even when a case reaches mediation. This is not some abstract theory, I’ve heard many defense attorneys, during their mediation presentation, come right out and say as much.
Another tactic, which even predates Covid, is the frequent “stonewalling” from defense law firms when trying to schedule court hearings and depositions. It is not uncommon to be told that the first available date a defense attorney has is four or five months down the road. When that happens, I file a Motion for Case Management Conference to keep them on their toes, then suddenly their calendar clears.
In a nutshell, these new Administrative Orders move state cases closer to the way Federal Courts operate, and actually even go beyond that. While there are many aspects to these Orders, what jumps out at me is that local Circuit Court Judges will now just enter a Case Management Order, including a trial date, regardless of an attorney’s “availability” and even when the case is not “at issue.” While both attorneys who represent injured auto accident (and other personal injury negligence cases) and defense attorneys would be wise to pay very close attention, I believe this is a much bigger problem for the defense side. At McPherson & Thomas, once a lawsuit is filed we move it along and prepare for trial. Now, large defense firms paid by insurance companies will have no choice but to drop the stonewalling games. To put it another way, the Supreme Court and Circuit Judge’s are saying, “If you don’t prepare your case and haven’t taken depositions, then too bad, your trial is scheduled on “x” date. Presumably, the case management Order will also include discovery deadlines, which again will be great for dealing with “stonewalling” defense firms.
From our firm’s perspective, these Administrative Orders are very good news indeed!