Intro. Created by the Florida Legislature in 1999 in response to concerns about dwindling judicial resources and increasing delays in getting trial dates, Voluntary Trial Resolution (also sometimes referred to as “private trials”) provides a process likely to address most employment litigators’ concerns nicely. Voluntary Trial Resolution, at its base, is an alternative dispute resolution process where the parties agree to have someone other than a sitting judge hear and decide the dispute.
Here’s how it works, at least in the Thirteenth Judicial Circuit.2 Once the parties/counsel have agreed to have the matter heard by a Trial Resolution Judge (which would usually occur presuit, but which could, presumably, occur after suit is filed), the case is assigned to a Circuit or County Judge, whose Judicial Assistant serves as the Trial Resolution Judge’s JA for the matter, coordinating with other court resources for the trial: arranging for bailiffs, clerks, reporters, courtrooms, and, if demanded, a jury venire. However, the selected Trial Resolution Judge (“TR Judge”) presides over the pretrial litigation and the trial itself in the same manner as a Circuit or County Judge who would otherwise have heard the case. Fla. Stat. § 44.104. The TR Judge has the authority to enter orders on motions to dismiss and for summary judgment, resolve discovery disputes, and the like. Id. § 44.104(7)-(8). While the TR Judge does not have contempt powers as such, he or she does have the power to sanction parties pursuant to Rule 1.380 for discovery violations and the like. Id. Once the TR Judge has ruled on the dispute, judgment is entered thereon, upon application of the prevailing party to the assigned Circuit or County Judge. Id. § 44.104(11), (13).
Once commenced, the TR Judge handles this as the judge of the case. The matter proceeds as it would in state court, except that the parties may, at their agreement or upon order of the TR Judge, agree to a discovery schedule. These are very helpful to keep the matter on track.
Further, if there are discovery disputes or the like (and when aren’t there?), counsel need not attend a cattle-call type, Uniform Motion Calendar hearing; instead, since the TR Judge is “your” judge, you are generally able to get these matters heard quickly and expeditiously. If appearance is required, rather than a telephonic hearing, the hearing need not occur at the Courthouse; it can occur at either side’s office or at the office of the TR Judge, or some other location. The TR Judge, compensated by his or her “customers” is likely able to be more accommodating in this regard than most sitting judges, who simply do not have the time or resources to schedule such hearings in a manner more conducive to the parties’ schedules.
Finally, one can get a trial date certain with a TR Judge. Unlike state court dockets, where counsel are at the mercy of the several other cases set for trial on the same docket (those of us who litigate know the hurry-up-and-wait, nail-biting anguish of the typical trial calendar), the TR Judge schedules the trial to begin at a date and time for which you, your clients, and your experts can plan. This advantage of Voluntary Trial Resolution over traditional trial is underscored even further when we recall that, with Revision 7 to Article V of the Florida Constitution due to take effect this summer, many circuits are bracing for a relative lack of trial judges available to hear general civil cases. With the courts required to hear criminal and delinquency matters first (to avoid speedy trial rule dismissal), and many circuits giving next preference to dependency and family matters, at least one Circuit has warned that it may have only one Circuit Judge available to hear the rest of all civil trials. If this dire prediction should come true, then parties will have no choice but to embrace Voluntary Trial Resolution or something like it, or face years-long delay in getting cases tried.
Conclusion Voluntary Trial Resolution offers parties and counsel advantages over both binding arbitration3 and civil trial in Circuit or County Court. The expense of the TR Judge’s services should be more than offset by the savings the parties would realize through reduced delay and attendant costs. With its combination of formality and flexibility, the involvement of a subject-matter expert as presiding neutral, and preservation of appellate remedies, Voluntary Trial Resolution may very well become the wave of the future.
1 This article first appeared in Hillsborough County Bar Association Lawyer, Vol. 14, No. 7, at 40-41 (April 2004) and again, in a slightly different form in “Voluntary Trial Resolution: Tailor-Made for Employment Claims”, The Checkoff, Vol. XLII, No. 3, at 5 (Florida Bar Labor and Employment Section May 2004).
2 Per Administrative Order S-2001-027 (13th Jud. Cir. Ct. May 3, 2001), www.fljud13.org/AO/DOCS/2001- 027.pdf. The author believes this is indicative of how other circuits/counties that have addressed Voluntary Trial
Resolution have handled it. See, e.g., Administrative Order PA/PI-CIR-00-04 (6th Jud. Cir. Ct. January 26, 2000), available at http://www.jud6.org/legalpractice/aosandrules/aos/aos2000/ao04papi.html.
3 The principal feature of binding arbitration that leads some attorneys to have a preference against its use is the limited scope of review of the arbitration aware. See, Fla. Stat. § 682.13 (fraud, corruption, evident partiality of the arbitrator, exceeding scope of jurisdiction, or similarly egregious conduct usually required to vacate an award).