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CALL ME, MAYBE? THE NEW CONFERRAL RULE IN STATE COURTS
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Have you updated your motion forms or mode of practice to include a“ certificate of conferral” for most motions that you file?
Before you read further: Have you updated your motion forms or mode of practice to include a“ certificate of conferral” for most motions that you file? If not, plan to do so when you finish this article.
Effective January 1, 2025, Florida Rule of Civil Procedure 1.202 requires that almost every non-dispositive motion— subject to only 14 exceptions— must be filed after you have conferred or attempted to confer in good faith with opposing counsel and must include a certificate with the details of that conferral. The certificate must be placed at the end of the motion and above the signature block. Because some courts are, or will be, screening for compliance, the best practice is to set it off with a bolded title, much like the certificate of service.
Rule 1.202( b) also governs the form of the certificate and has exemplar language that you must either adopt or use language that is substantially similar. You must disclose the date and method of communication and whether the opposing party agrees to all or part of your motion. If you are unable to reach the opposing party, you
must describe“ all of the efforts undertaken to accomplish dialogue.”
Finally, the rule provides for sanctions for noncompliance. A motion lacking a conferral certificate can be denied without prejudice. Other sanctions may be imposed if you fail to confer or for“ purposeful evasion of communication.”
What constitutes a“ good-faith effort” to confer? The rule does not elaborate, but at a recent CLE for the Trial & Litigation Section, judges weighed in with some tips.
1. Email may not be sufficient. Some judges expressed skepticism that a good-faith conferral could be accomplished by email. While you might start the conversation via email, they suggested that a productive backand-forth to try to resolve or narrow the issues will often require a phone call.
2. Be reasonable in your attempts and detail your compliance. An after-hours’ email the night before you file the motion the next morning at 8:00 a. m. is not going to meet your good-faith requirement. Judges disagreed on exactly how many attempts you should make and over what time,
and noted that circumstances may vary. But all agreed more than one attempt was required, and perhaps three or four. If those efforts failed, all wanted to see not only the dates you attempted to reach opposing counsel but also the time and what response you received, if any.
3. No conferral, no hearing. At the time of the CLE, the Thirteenth Judicial Circuit had no means to identify insufficient motions at the time they are filed. A violation may not come to a judge’ s attention until shortly before a hearing. Some judges were inclined to cancel the hearing; others to require conferral on arrival, potentially eating up valuable hearing time.
So before filing that motion, pick up the phone. In today’ s legal landscape, it’ s not like Carly Rae Jepsen’ s“ Call Me, Maybe,” it’ s more like Blondie’ s directive:“ Call Me.” �
Author: Kristin A. Norse – Kynes, Markman & Felman, PA
Join the Trial & Litigation Section at hillsbar. com.
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