The case management conference: tune-up needed?

• Author: McFarland, Joseph Bothwell
• Position: Trial Lawyers Forum

The case management conference (CMC) is described in Rule 1.200(a) of the Florida Rules of Civil Procedure. (1) The CMC is used in criminal procedure as well, although there is no rule in the Florida Rules of Criminal Procedure referencing the CMC. (2) The Florida Family Law Rules of Procedure provide specifically for the CMC. (3) On the federal side, Rule 16 of the Federal Rules of Civil Procedure provides for pretrial conferences. (4) The primary focus of this article, however, is on Fla. R. Civ. P. 1.200.

Rule 1.200(a) can be used at the initiative of the court or the attorneys. The CMC can be convened at any time after responsive pleadings or motions are due.

At the CMC, the court may:

1) Schedule or reschedule the service of motions, pleadings, and other papers;

2) Set or reset the time of trials, subject to rule 1.440(c) [Setting for Trial];

3) Coordinate the progress of the action if complex litigation factors are present;

4) Limit, schedule, order, or expedite discovery;

5) Schedule disclosure of expert witnesses and the discovery of facts known and the opinions held by such experts;

6) Schedule or hear motions in limine;

7) Pursue the possibilities of settlement;

8) Require filing of preliminary stipulations if the issues can be narrowed;

9) Consider referring issues to a master for findings of fact; and

10) Schedule other conferences or determine other matters that may aid in the disposition of the action.

This list of powers gives flexibility to the court and the parties in moving the case towards settlement or trial.

One example of how the CMC should have been used appears in Wrona v. Wrona, 592 So. 2d 694 (Fla. 2d DCA 1991). In this case, a former husband appealed a final divorce judgment. Judge Altenbernd, frustrated by the wasteful and costly litigation, noted that the drain on marital assets resulting from protracted litigation should have been addressed at a CMC early on in the litigation, especially in a situation where minor children need the limited marital assets. (5)

The CMC does sometimes need to be used to spur action. In Cristancho v. Village Homes in Bonaventure Homeowners Association, Inc., 580 So. 2d 658 (Fla. 4th DCA 1991), the appellate court reversed a dismissal for failure to prosecute under Fla. R. Civ. P. 1.420(e). There had been no discovery initiated between December 1985 and May 4, 1990. A fourth amended complaint had been filed on April 7, 1989, and the defendant filed motions to dismiss within several weeks. The plaintiff did nothing until May 4, 1990, at which time a notice of deposition and request to produce were filed--a few days before the one-year time limit expired. In a concurring opinion, Judge Farmer reluctantly agreed that Rule 1.420(e) permitted such neglect, but speculated that the trial judge could have used the CMC to get the case moving. (6)

In Moossun v. Orlando Regional Health Care, 760 So. 2d 193 (Fla. 5th DCA 2000), an appellate decision currently under review by the Florida Supreme Court, the central issue to be decided was whether an order setting a CMC constituted record activity for purposes of Rule 1.420(e). The court affirmed the trial decision to treat the case management order as insufficient to establish record activity when a CMC was being set, which is a step intended to move the case closer to settlement or trial. (7)

Attorneys who establish a pattern of ignoring case management conferences and otherwise not cooperating with court deadlines risk a dismissal of claims and a default judgment. (8)

In some litigation settings, such as family law (9) or probate litigation, the court may take a more proactive role in the use of the CMC. Attorneys and the court may also be more predisposed to employ the CMC when there are numerous parties and/or complex issues. For example, Bush v. Holmes, 767 So. 2d 668 (Fla. 1st DCA 2000), involved the appeal of a determination by the trial court that provisions of Florida's Opportunity Scholarship Program were unconstitutional. Many parties were involved as well as a number of important issues. The CMC was used to identify issues that required the presentation of evidence and the issues that dealt with the statute's constitutionality. (10)

When the CMC is used by the attorneys to select times for mediation or trial, a time frame is created within which the parties must prepare themselves and the court for the upcoming proceedings...