The New Florida Rules of Civil Procedure: How Will They Affect You?

As many of you may have been reading, the Florida Supreme Court recently issued a major overhaul of the Rules of Civil Procedure, effective January 1, 2025 by issuing two separate per curium opinions which introduce substantial changes to the Florida Rules of Civil Procedure, SC2023-0962 and SC2024-0662. These changes are meant to streamline case management, encourage cooperation among parties, and expedite the resolution of cases.

The new rules basically create a “federal-esque” regime of rules paralleling most of the Federal Rules of Civil Procedure. Historically, when a lawsuit was brought in federal court, those suits were more expensive to bring, more expensive to defend, and took more time to resolve. However, federal cases moved along much quicker than in state court and came to resolution faster.

The recently amended Florida Rules of Civil Procedure encourage a more structured, proactive case management track for the trial court, with the objective of resolving cases timelier. There is also, with some exceptions, a duty on the moving party prior to filing certain motions, to confer with the opposing party to attempt to, in good faith, resolve issues prior to setting a hearing on a particular motion.

How may this affect a claimant?

While it ultimately depends upon the type of case one has within the Florida state court system, a key takeaway from the new rules is that cases will be moved along. Currently, if a hearing is scheduled for motion calendar, a movant has no way to compel opposing counsel to file a response in opposition to the filing until a hearing date is scheduled on the motion. Given the court’s hearing calendar and an opposing party’s lack of motivation to move the case along, a claimant can wait for months to even learn the other party’s opposition, which, in turn, hinders any type of settlement.

An effect of the new rules is that when an attorney brings an action, the attorney will need to perform an enormous amount of preparation prior to filing the lawsuit. Currently, in some legal practices, such as personal injury, delay is part of the strategy when defending a claim. During that time, insurance companies may be able to invest their money for a long period of time knowing that their defense lawyers will be able to delay an average case of 3 to 4 years.  In commercial litigation, in general, a plaintiff’s lawyer could effectively make certain allegations in the complaint not knowing if those allegations would stick. Now, before a case is brought, clients will need to provide their attorneys with backup documentation and the attorneys will need to disclose this documentation, otherwise known as discovery, along with the filing of the lawsuit. This will force the plaintiff’s lawyer to actually determine whether they truly have a viable case. The same will hold true for defense lawyers, who will need to actually react faster and not be able to delay the case. The result is that many of these cases will be settled earlier since the cost of litigation may be too high for both sides. In addition, in a perverse way, justice may be better administered in these kinds of situations so that if someone was really injured in an accident, a settlement will be obtained quickly. Thus, justice and decisions on the merits of a case will be more expeditious.

Due to truncated time limitations as set forth in the new rules, and therefore increased cost in handling litigation, the new rules create a dual incentive for parties to try and resolve a matter quickly. Quicker resolution, in turn, helps judges reduce their own caseload while at the same time requiring cases to be expedited with some judges who may have not been moving their dockets as quickly.

Cases that are not brought on a contingent basis, where the lawyer only gets paid if they win, may have some new impediments with these new revisions to the Florida Rules of Civil Procedure. In the past, depending upon the type of litigation brought in state court, a lawyer in Broward County could bring an action with a nominal fee and cost retainer as an initial down payment. With the new rules, those days will be soon over, as lawyers will need probably double their typical initial retainer amount in order to bring an action. The initial cost will be expensive, as the amount of work will be far more laborious and time sensitive due to shortened time limitations. Thus, small commercial type litigation cases will more likely be resolved out of court.

What impact will these amended rules have on Florida foreclosure cases?

The impact of the new Rules of Civil Procedure in Florida on foreclosure cases is not clear, but rather nuanced. To begin with, banks will not be allowed to be sloppy in their paperwork when they bring an action. They will need to have all their ducks in a row and have all their evidence and discovery prepared basically at the time that the action is brought. The cost of bringing a foreclosure will initially be more expensive and will require more attorney time. From the defense perspective, the opportunity to delay and have people stay in their homes for years at a time will probably be, for the most part, over. Having said that, there will be opportunities to quickly look at the discovery provided by the banks and see if, in fact, there are true irregularities in the paperwork. With prompt discovery due to the new rules, one would quickly find cases that are truly egregious where evidence shows that a bank flagrantly trampled upon one’s due process rights and had inconsistent accounting.

Perhaps the “run-of-the-mill” foreclosures where the only issue is that the bank has not been paid will be settled quickly so that neither side has exceptional legal fees and that funds can be used to help relocate or, in the alternative, reinstate the mortgage.

How will the new rules affect real estate litigation in Florida?

In cases where a buyer sues a seller for defects in the home that were not adequately disclosed, unless the defects are truly egregious, it may be difficult to justify the cost of bringing such an action (except that if one is successful, one would be entitled still to attorney fees under most real estate contracts). Again, there will be pressure on both sides to try and resolve these matters through alternative dispute resolution through either arbitration or mediation.

The same may hold true for a seller that is suing a buyer for breach of contract. The most common situation is where a seller sues a buyer because the buyer has not performed or breached their contract by either not showing up to closing and paying for the property. The seller then files a specific performance lawsuit against the buyer for not completing the purchase of the seller’s property. Historically, those kinds of actions typically could take up to 2 years or more to go through the legal system. Now, under the new rules, such cases may be resolved probably in a year or less, specifically if it can be resolved at the summary judgment level. However, specific performance actions will be very expensive for the seller under the new rules. The seller may nevertheless sue for specific performance, assuming the seller has a strong case, the seller could force the buyer to close on the property should the buyer have the financial resources to do so, and also obtain attorney fees pursuant to the provisions in the real estate contract. The same holds true for a buyer who is suing a recalcitrant seller who refuses to sell property after a contract has been fully executed. Specific performance cases are always tricky because many times, over the period of time during the litigation, the value of the property changes. More likely than not, the property values go up, but we have seen circumstances where the property values have actually gone down during the litigation process.

What is the bottom line?

In some cases, the courthouse steps may be pushed further away for some consumers because of the initial expense for attorneys to review the cases, including discovery, prior to filing the lawsuit or defending it. There will probably be an uptick in Alternative Dispute Resolution, mediation, and arbitration because that is a less expensive way to resolve matters.

In cases where insurance companies have acted in bad faith by delaying personal injury cases in order to hang on to the money that they have collected from their insureds and invest, such strategies will be less available.

Banks will have to get their ducks in a row before filing foreclosures, and they will probably have to spend more money to bring the foreclosure, but those cases that are routine will go faster, and those cases that are egregious will get resolved faster. Finally, judges will have less cases, but they will probably have to oversee cases in depth from the start.

All in all, there will be winners and losers; and until these changes to the Florida Rules of Civil Procedure are in full implementation we can only just speculate as to whom will come up on top. There are always unintended consequences to any law even though the procedural changes were brought presumably in good faith.

From the trenches,

Roy Oppenheim