ADR CORNER
ADR CORNER
Don ’ t Let the New Trial Schedule Mandate Keep You From Getting Your Motions Heard
CIRCUIT JUDGE ( RET .) KENNETH D . STERN
The Florida Supreme Court ’ s new Differentiated Case Management requirements ( Rule 2.250 ( a )( 1 )( B ), Fla . R . Gen . Prac . & Jud . Admin .) mandate procedures to expedite preparation for trial . To facilitate compliance with that rule , our Chief Judge Glenn Kelley has promulgated Administrative Order 3.110 .
When a deposition cannot be taken because opposing counsel has filed Motions for Protective Orders invoking privilege , irrelevancy , etc . against the first attorney ’ s Request for Production , Interrogatories , etc ., that deposition must await rulings on the motions . And now , the Board of Governors of the Florida Bar is advocating the promulgation of new discovery rules providing for sanctions for lawyers who do not meet the deadlines !
What to do ? Fortunately , there is an answer . You and opposing counsel can file a Joint Motion for Appointment of a Special Magistrate . Fla . R . Civ . P . 1.490 ( b ) authorizes the court to appoint a Special Magistrate ( no longer called a Special Master ) “ for any particular service required by the court .” ( A Special Magistrate may help to speed discovery and trial preparation in other ways as well , as by being appointed to conduct an in camera document review and rule on objections to discovery with respect to each document , or preside over depositions to rule on objections , maintain order , etc .) ( Note : a court may not appoint a Special Magistrate unless the parties agree .)
The Special Magistrate will hold hearings ( perhaps one long hearing addressing all the issues ) and file his / her Report and Recommendations with the court . Within 10 days , either party may file Exceptions to any of the recommendations ; the opposing party may , within five days after the Exceptions are filed , file an opposing brief or Cross-Exceptions to the Magistrate ’ s Report . Often , if the Report and Recommendations contain citations to law supporting each recommendation , and the Exceptions do not negate those citations , the Court will readily adopt them . Sometimes , the mere filing of the Special Magistrate ’ s Report and Recommendations , if thorough , may lead to the parties ’ agreeing on resolving the motions before the Court can address them , or even to the case settling .
In one such case in this Circuit , the attorneys were unable to take crucial depositions because of the Court ’ s backlog . Counsel jointly moved for appointment of a Special Magistrate , which the Court granted . The Special Magistrate held two full days of hearings , some with testimony , and issued a detailed 51-page Report and Recommendations . The case settled before the Judge could address the R & R , which may be seen on the Clerk ’ s website as : Weiss Research , Inc . v . Finest Known , LLC , et al ., Case No . 502015 CA 013012 , Docket Entry 322 .
If your opposing counsel agrees , you should file a Joint Motion for appointment of a Special Magistrate , with a proposed Order making the appointment . The Motion should state that the parties agree not only to the appointment of a Special Magistrate , but to the appointment of a specific person named in the motion . If you both agree that a Special Magistrate should be appointed but cannot agree on who should be appointed , your joint motion should ask the Court to name at least three persons and require the parties to agree on one . Counsel should consult with the prospective appointee to ascertain and agree on his / her hourly rate , which should be noted in the Order of Appointment .
Your proposed Order appointing the Special Magistrate must specify the matters being referred to the Magistrate . If the court ’ s Order of Referral contains issues which you did not consent to being heard by the Special Magistrate , you must object before the date the
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Magistrate has set for the hearing . If you object to the referral and your objection is denied , you may petition the Court of Appeal for either a writ of mandamus or a writ of prohibition . If , during the hearing , the Special Magistrate should address something not contained in the order of referral , you should immediately object on the record ; you may then participate in the hearing , and your objection will be honored by the trial court or , if not , by the appellate court .
Always seek to reduce the number of issues to be addressed by the Special Magistrate . Either before or after you move for appointment of a Special Magistrate , suggest to opposing counsel that you arrange to confer to go over all the items in dispute , to try to agree on as many items as possible . Some items will almost certainly be resolved in favor of one side or the other , and these can be complied with and taken off the table .
Any member of the Florida Bar may be appointed to serve as a Special Magistrate . Many attorneys prefer to use retired Judges , because they know the reputation of each for fairness , intellect and other qualities desired in a Special Magistrate . “ Upon a showing that the appointment is advisable [ e . g ., where technical expertise is required ], a person other than a member of the Bar may be appointed .” Rule 1.490 ( b ).
Retired Circuit Judge Kenneth D . Stern regularly publishes columns in the ADR Corner column in our monthly newsletter , and is a frequent panelist in seminars on Alternative Dispute Resolution . Since his retirement , Judge Stern has been serving as a Special Magistrate , and as a Mediator and AAA-member Arbitrator . Judge Stern may be reached at kdstern @ gmail . com or at ( 561 ) 901-4968 .
For additional ADR tips and resources , go to www . palmbeachbar . org / alternativedispute-resolution-committee .