Private judging in Florida: useful in business cases?

AuthorBrodsky, Richard E.

Although many lawyers may not know it, there is an established procedure in Florida for civil cases to be decided by private judges (trial resolution judges), where the rules of court apply and a right of appeal on all questions of law exists. Enacted in 1999, a little-known provision of the Florida Statutes providing for "voluntary trial resolution" (VTR) before a trial resolution judge, F.S. [section]44.104 has received little notice and apparently has not been widely used. Despite this, business litigants who think they would benefit from trial before a judge with a sophisticated understanding of the issues arising in business litigation and the time to "get into the weeds" may want to look carefully into this provision. Section 44.104 also provides for "voluntary binding arbitration," which is beyond the scope of this article.

F.S. [section] 44.104(1) provides that "[t]wo or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to ... voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved."

VTR is open to all civil disputes except for those delineated in [section] 44.104, including, as is pertinent to business cases, "constitutional issues," and cases with indispensable third parties not agreeing to this procedure. (1)

The Mechanics of the Statute

VTR occurs when all parties to the dispute request it from the court. (2) A trial resolution judge is either chosen by the parties or, in the absence of an agreement, appointed by the court. The parties may agree on any member of The Florida Bar in good standing for more than five years, or, if there is no agreement or cannot be followed, the court appoints the trial resolution judge. The court shall provide for appointment of a trial resolution judge within 10 days of filing. (3) The statute further states that the trial resolution judge is to be compensated by the parties pursuant to their agreement. Filing of the application tolls the applicable statute of limitations. (4)

The statute provides:

The ... trial resolution judge may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide. At the request of any party, the. trial resolution judge shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law. (5)

The Florida Evidence Code applies. (6) The voluntary trial judge conducts a voluntary trial resolution hearing and "may determine any question and render a final decision." (7)

Upon the conclusion of the hearing and the rendering of a final...

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