HCBA Lawyer Magazine Vol. 30, No. 5 - Page 26

breaking The rules: florida’s reVised rulemaking ProCess Appellate Practice Section Chairs:­Joe­Eagleton­–­Brannock­Humphries­&­Berman­and­Chance­Lyman­–­Buchanan­Ingersoll­&­Rooney Practitioners will now constantly need to stay alert for changes to the rules E mphasizing efficiency 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 24 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. 1 Author: Joe Eagleton – Brannock Humphries & Berman M AY - J U N E 2 0 2 0 | HCBA LAWYER