I posted about the proposals pending before the Florida Supreme Court for reform of the civil practice in Florida. They are long and involved. With much perseverance and patience, they are worthy of attention and study. As mentioned in Civil Rules Reform (January 2023), one of the main focuses highlighted in the news is sanctions, “severe sanctions.”
The report openly notes this
“the civil rules include only scattered references to sanctions which the trial court may impose”
Therefore, there is a proposal for “a single rule delineating available sanctions and codifying certain sanctions-related case law.” The proposal is for a “new rule, numbered 1,275.” The sentiment seems strong that those who do not comply with rules and orders should be dealt with in civil practice, that there is “a growing culture of non-compliance in the absence of consequences for failure to follow the rules.”
RULE 1.275. SANCTIONS (a) General. The court may impose a sanction if a party or attorney fails to comply with these rules or any court order arising from a case brought pursuant to these rules. To the extent that any rule of civil procedure specifies options for the sanction of misconduct, the sanctions set forth in this rule shall be deemed supplemental to such other rule, as appropriate.
(b) Available Sanctions. On a party’s motion or on its own motion, the court may impose appropriate sanctions in respect of such conduct, unless the non-compliant party or attorney demonstrates good reason and the exercise of due diligence. Such sanctions may include one or more of the following measures, but are not limited to:
(1) reprimand the party or attorney, or both, in writing or in person;
(2) require one or more clients or business entity representatives to attend certain hearings or all future hearings in the action;
(3) refuses to allow the party to support or oppose a designated claim or defense;
(4) to prohibit a party from introducing designated matters into evidence;
(5) suspend the further proceedings, in whole or in part, until the party obeys a rule or previous order;
(6) require a non-compliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) by the opposing party as a result of the conduct;
(7) reducing the number of peremptory challenges available to a party;
(8) the dismissal of the action, in whole or in part, with or without prejudice;
(9) enter pleas and enter a default or default judgment;
(10) referral of the attorney to the local professionalism panel or The Florida Bar; and
(11) the party or lawyer found in contempt of court. (Emphasis added).
Is it sufficient (even in light of the “not limited to” included)? Would any of these suggestions be workable or desirable in the workers’ compensation litigation process? The standard in workers’ compensation is in Rule 60Q6.125:
(1) In general. Failure to comply with the provisions of these rules or any order of the judge may subject a party or attorney to one or more of the following sanctions: discontinuance of claims, petitions, defenses or pleadings; imposition of costs or attorney’s fees; or such other sanctions as the judge deems appropriate.
However, this is limited with the prudence limitation:
(4) A sanction imposed for the breach of these rules is limited to what is sufficient to deter repetition of such conduct or comparable conduct by other similar conduct. Fines, fees and costs awarded under this provision may not be recovered from the party unless the party committed the breach.
(5) Any order imposing sanctions shall describe the conduct determined to be in violation of the rule or statute and explain the basis for the sanction imposed.
So there is a spirit of sanctions that are narrowly focused, limited to what is necessary, and explained in such a way that there is clarity about both the current case and guidance for the future. But what about the proposals in the civic arena? Would they have merit in workers compensation?
(1) reprimand the party or attorney, or both, in writing or in person;
There have been JCCs that have tried to send lawyers to continuing education programs as punishment for violating Bar Rules, but without success. Pace vs. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286 (Fla. 1st DCA 2004). This is probably not the same as a reprimand for breaching rules of practice. I have seen many JCC orders reprimanding or admonishing a party or counsel.
(2) require one or more clients or business entity representatives to attend certain hearings or all future hearings in the action;
This is a sanction that we have seen on many occasions in respect of missed mediations and hearings or failure to comply with agreements or orders.
(3) refuses to allow the party to support or oppose a designated claim or defense;
The striking of claims or defenses is certainly in the JCC toolbox, but the Court of Appeal was persistent in its reminders that such a severe sanction should essentially be a last resort and only upon a finding of willfulness. Lincoln Assocs. & Const., Inc. f. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(4) to prohibit a party from introducing designated matters into evidence;
It is definitely in the JCC toolbox and has occurred in a multitude of cases. However, it is arguably limited to the “actual prejudice” standard adopted by the Court in Binger v. King Pest Control, 401 So booked. 2d 1310 (Fla. 1981).
(5) suspend the further proceedings, in whole or in part, until the party obeys a rule or previous order;
The authority to enter an accommodation was not granted to the JCCs. Alachua Cnty. Adult Det. Ctr. f. Alford, 727 So. 2d 388, 389 (Fla. 1st DCA 1999). But perhaps a JCC can continue the trial or hearing until such time as compliance occurs.
(6) require a non-compliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) by the opposing party as a result of the conduct;
It has certainly been imposed by JCCs at various times and in particular circumstances. This included payments to doctors in respect of depositions or other appointments.
(7) reducing the number of peremptory challenges available to a party;
There are no juries in workers compensation, and this seems irrelevant.
(8) the dismissal of the action, in whole or in part, with or without prejudice;
It differs from (3) only in terms of the degree or magnitude of the impact. It would appear that this is also within the discretion of the JCC, but subject to the Court’s warnings regarding its seriousness.
Lincoln Assocs. & Const., Inc. f. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(9) enter pleas and enter a default or default judgment;
This is similar to (3) and (9) and is again seemingly more of a scope or degree than a separate sanction in workers’ compensation.
(10) referral of the attorney to the local professionalism panel or The Florida Bar; and
This authority certainly exists, and is in fact mandated. RULE 4-8.3 REPORTING OF PROFESSIONAL MISCONDUCT “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a material question about that lawyer’s honesty, trustworthiness, or suitability as a ‘ a lawyer in other respects, the appropriate professional authority must (b) Reporting misconduct of judges A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a material question about the judge’s eligibility for office, must notify the appropriate authority.
(11) the party or lawyer found in contempt of court.
Will the practice of workers’ compensation need additional sanction pathways, or greater use of those that exist? Is the informality we have all come to value too much in relation to practitioners of some character? There is a perception that the speed limits are set at 70 because they know people will speed. So, if 70, people would drive 80, but if the limit was 80, then they would drive 90. So, maybe, maybe there is some benefit to everyone in our community in familiarity and informality, but if the bar is too low, maybe some will take advantage of each other to the detriment of all? Maybe sometimes there is a need for a few tickets to be issued so that everyone remembers that there are restrictions and rules?