breaking The rules: florida’s reVised rulemaking ProCess
Appellate Practice Section
now constantly need
to stay alert for
changes to the rules
and a more streamlined
process, the Florida
Supreme Court has
implemented major changes to
the way Florida’s rules of court
procedure and standard jury
instructions are developed,
amended, and implemented.
The changes, announced in two
separate opinions issued in early
2020, mark a dramatic departure
from the decades-long practices
of Florida’s ten rules and three
jury instruction committees.
For years, the rules committees —
which oversee broad topics like the
civil, criminal, and appellate rules
along with the subject-specific rules
governing family, traffic, probate,
and small-claims proceedings —
have filed reports with the Supreme
Court on a staggered basis in
scheduled three-year cycles. No more.
Starting June 1, the committees
will instead be authorized to file
proposals with the Court “whenever
a committee determines rules
changes are needed.” 1 According
to the Supreme Court, which took
this action on its own initiative, the
revised procedure will allow amend -
ments to Florida’s rules of court
to be proposed and adopted “in a
more efficient, timely manner.” 2
Historically, the cycle reporting
system has caused efforts to amend
the rules to languish for years
between their proposal and ultimate
on a rolling basis.
adoption by the Court. The delay
has also meant that the committee
members most intimately involved
in analyzing, developing, and
suggesting the proposals sometimes
are no longer on the committee
when the reports and attendant
comments are considered by the
Court. Of course, the new ad-hoc
procedure, while “provid[ing] for
more expeditious rule making,” 3
could have drawbacks of its own.
The committees will now constantly
be engaged in a process of
submitting proposals to the Court,
and practitioners will now constantly
need to stay alert for changes to the
rules on a rolling basis.
Another change with a major
impact on practitioners involves
the process for creating, amending,
and publishing standard jury
instructions for use in civil,
criminal, and contract and
business cases. Dating back to
the late 1960s, when the Florida
Supreme Court created the first
committee that was responsible for
developing standard instructions
for each of these case types,
Florida has had “one of the few
state high courts that authorizes
or approves standard, pattern, or
model jury instructions.” 4 Although,
in each opinion adopting a model
instruction, the Court includes a
caveat that it is not opining on
the instruction’s correctness, the
Court has come to believe that,
due to its involvement, “trial
judges are sometimes reluctant to
modify standard jury instructions
or to give other instructions
requested by a party that may be
more appropriate.” 5
Based on that concern, along
with the additional concern that
the “current process for developing
and authorizing standard jury
instructions is more cumbersome
than necessary,” 6 the Court decided
to remove itself from the process.
Under this revised approach, the
three committees will now develop
and approve, by two-thirds vote,
new and amended jury instructions
and will publish those instructions
on their own. Time will tell whether
this system, while seemingly
granting the committees greater
responsibility, will reduce the
overall standardization of jury
instructions given in Florida courts. n
In re: Amds. to Fla. R. Jud. Admin.
2.140, No. SC19-2104, slip op. at 2
(Fla. Feb. 6, 2020).
2 Id. at 1.
3 Id. at 2.
4 In re: Amds. to Fla. R. Jud. Admin.,
etc, No. SC20-145, slip op. at 2 (Fla.
Mar. 5, 2020).
5 Id. at 5.
6 Id. at 4.
Author: Joe Eagleton – Brannock
Humphries & Berman
M AY - J U N E 2 0 2 0