PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Let’ s Start Talking: New Conferral Requirements for Florida State Motion Practice
AVERY S. CHAPMAN
Chief Justice Roberts said in his 2015 Year-End Report on the Federal Judiciary:
I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.
Whether Justice Roberts’ belief was accurate, the new Florida discovery rules require cooperation between counsel. Effective as of January 1, 2025, Florida Rule of Civil Procedure 1.202 requires counsel to meaningfully consult with one another before filing most motions, with limited, enumerated exceptions. This Rule is designed to promote efficiency, and judicial economy. Practitioners should neither view Rule 1.202 as a gamesmanship opportunity, nor should the required consultation be feared as affording an unfair advantage. For context as to that last point, these conferral requirements are not new, and have been part of federal practice for a long time. As federal practitioners will tell you, required consultation does more to expedite, hone, and streamline motion practice, than create detriment to the movant. Actually, many local state jurisdictions have had, for some time now, standing consultation and certification requirements, without issue. See, e. g. In re: Uniform Motion Calendar and Specially Set Hearings, 15th Judicial Circuit, In and For Palm Beach County, July 18, 2017, Marx, C. J.(“ Local Rule No. 4”)(“ Movant’ s attorney has spoken in person or by telephone [ or attempted to do so ] with the attorney( s) for all parties who may be affected by the relief sought in the motion in a good faith effort to resolve or narrow the issues raised.”).
The Intention is to Move Cases
The initial iteration of Rule 1.202 was adopted on May 23, 2024 in the context of revamping case management practices statewide. See In re Amendments to Florida
Rule of Civil Procedure 1.510 and New Florida Rule of Civil Procedure 1.202, 386 So. 3d 117( May 23, 2024). Therein, the Court described its intent as“[ t ] o further assist case management efforts ….” Id. The Court listed exemptions for certain substantive motions, and imposed substantial conferral requirements both“ before filing nondispositive motions” and“ ahead of reserving hearing time.” The Court also imposed a certification requirement requiring specification of the conferral efforts.
Recognizing that the Rule was promulgated without a prior publication and comment period, the Court allowed a notice and comment period after publication. Upon receiving substantial commentary, the Supreme Court amended the proposed new Rule 1.202, making the Rule effective January 1, 2025. In re Amendments to Florida Rule of Civil Procedure 1.510 and New Florida Rule of Civil Procedure 1.202, No. SC2024-0662( December 5, 2024). Emphasized in both the initial and final iterations of Rule 1.202 is the concept of a duty of“ good faith” consultation. See, e. g., Rule 1.202( a)(“ Duty. Before filing a nondispositive motion, … the movant must confer with the opposing party in a goodfaith effort to resolve the issues raised in the motion.”). From that opening subsection( a), the Court is very clear that consultation is mandatory, and must be conducted in good faith, meaning“ honestly, objectively, with no deliberate intent to defraud the other party.” Black’ s Law Dictionary, 2d ed.
Time to Talk
Under the new conferral requirements of Rule 1.202, when counsel encounter discovery disputes, they must either pick up the phone, or send a detailed email addressing the anticipated dispute. Whether the initial contact is by phone or email, it is imperative that opposing counsel then respond in good faith. While Rule 1.202 does not specify exactly what
PBCBA BAR BULLETIN 18 good faith in the consultation context means, practitioners can find substantial guidance as to the definition of“ good faith consultation effort” from the text of the consultation certification required under the Rule. There, the requisite language for the certification states:“ I discussed the relief requested”, with a required description of the“ method of communication and date”,“ on the resolution of all or part of the motion.” Rule 1.202( b). In the event your opponent does not respond, then the certification requires a statement“ describing with particularity all of the efforts undertaken to accomplish dialogue with the opposing party prior to filing the motion.” Rule 1.202( b).
It’ s Not As Bad As You Might Think
While this type of consultation might seem pedestrian to federal practitioners, through Rule 1.202, it will soon become ingrained in state court practice. For example, in the Southern District of Florida, since at least 2007, Local Rule 7.1( a)( 3), requiring a good faith prefiling conference, is now echoed in Rule 1.202:
Pre-filing Conferences Required of Counsel. Prior to filing any motion in a civil case, except [ similar 1.202 list enumerated ] counsel for the movant shall confer( orally or in writing), or make reasonable effort to confer( orally or in writing), … in a good faith effort to resolve by agreement the issues to be raised in the motion. Counsel conferring with movant’ s counsel shall cooperate and act in good faith in attempting to resolve the dispute. At the end of the motion, and above the signature block, counsel for the moving party shall certify ….” 2
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