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A controversial administrative order by the chief judge in Fort Lauderdale, Fla., allowing judges to refer all civil lawsuits in Broward County to mandatory, nonbinding arbitration is creating waves. The purpose of Broward Circuit Chief Judge Dale Ross’ order is to ease a caseload crunch that is expected to grow next year when the state of Florida takes over court funding under a constitutional amendment approved by voters in 1998, said Judge Thomas Lynch IV, administrative judge of the civil division of the Broward Circuit Court. Judges say they already are sending some of their more complex, multiparty cases to arbitration. Medical malpractice lawyers are expressing particular concern. Judge Ross issued the order on Feb. 26, but many Broward litigators are just finding out about it as they receive judicial orders forcing their cases into nonbinding arbitration. Under Ross’ order, judges may refer any case to arbitration, requiring the parties to agree on an arbitrator or arbitration panel; if they can’t agree, the judge chooses one from a list of qualified arbitrators. If, after arbitration, one party does not agree with the arbitrator’s ruling, the party can request that the case go to trial from scratch. But if a party chooses to go to trial and is awarded less than in the arbitration, or the party loses at trial, the judge can order that party to pay the other side’s entire attorney fees. It is this “fee-shifting arrangement” that most worries plaintiff and defense lawyers. “We think it’s a horrible idea,” said Scott Liberman, a partner at Krupnick Campbell Malone Buser Slama Hancock McNelis Liberman & McKee in Fort Lauderdale. “It’s not conducive to multiparty, complex med mal cases. Nobody thinks it’s going to advance these cases.” “It might be unconstitutional,” said Russell Adler, president of the Broward County Trial Lawyers Association. “It could deny access to the courts.” Judge Lynch said Chief Judge Ross established the new system to ease the current caseload crunch, which is likely to intensify because the Florida Legislature failed to fund any new judgeships this year. Ross also hopes to prevent an even worse squeeze next year when the financially strapped state takes over responsibility for funding the courts under Revision 7 to Article V of the state constitution. “Article V [the constitutional amendment] has something to do with it, sure,” Judge Lynch said. “I think the parties will be able to resolve their cases quicker. It’s more efficient.” Ross did not return calls for comment. The Florida Supreme Court has instructed judges around the state to dispose of their cases within one year of filing and to find ways to lower their caseloads. Ross and others see mandatory nonbinding arbitration as one way to accomplish that. Adler and state Sen. Walter “Skip” Campbell, D-Tamarac, a partner and plaintiffs’ lawyer at Krupnick Campbell, are scheduled to meet with Judge Lynch this month to discuss the new arbitration system. A subcommittee of the Broward County Bar Association also has requested a meeting with Lynch on the matter. Lynch said Ross issued his order after seeing the results of a study of arbitration in Hillsborough County. Lynch said the study showed that out of 600 cases sent to mandatory, nonbinding arbitration, 450 were resolved before going to trial. Other judges also recite these figures. But court officials in Hillsborough County offer a less rosy view of the experience with arbitration. According to figures provided to the Daily Business Review by the court, of the 10,256 civil lawsuits filed between April 2002 and April 2003, only 92 were referred to arbitration. Just 59 arbitrations were scheduled and 21 led to a resolution. Seventeen defendants and 19 plaintiffs subsequently requested a regular trial. Just two cases were settled after the first arbitration meeting. Hillsborough County started both mediation and arbitration as the first alternative resolution dispute pilot project of the Florida Supreme Court in 1988. While mediation has proven extremely popular, with more than half the civil cases being referred, arbitration never really caught on, said Nancy Yanec, Hillsborough’s chief deputy court administrator. “We’ve never done a lot of arbitration here,” Yanec said. “The Bar never liked them. Probably because there could be sanctions if they go to trial after the arbitration — attorneys’ fees, more court costs, more billable hours.” Miami-Dade Circuit Court has had similar results with arbitration, which it began in 1988. Judges sent fewer than 100 cases to arbitration last year, said Wayne Rosenthal, director of mediation and arbitration for the Miami-Dade courts. “Mediation is the preferred means of alternative dispute resolution,” he said. In Broward, Judge Ross issued the order in February after setting up a committee of circuit and county judges to explore the option. All judges but one were in favor of it, said Circuit Judge Charles Greene, who served on the committee. He declined to identify the dissenter. But according to several lawyers, Broward Circuit Judge Ilona Holmes, who sits on the civil bench, has refused to send any cases to arbitration until she sees how the new system is working. Holmes did not return calls for comment. Unlike in mediation, a less formal process widely used to facilitate settlements before trial, arbitrations require both sides to present part of their cases as in a trial, with witnesses and depositions and experts. Arbitrators — some of them retired judges — are paid $175 for the first two hours and a maximum daily fee of $200. Like mediation, the parties share the cost of arbitration. Chief Judge Ross maintains a list of qualified arbitrators that is updated frequently. According to his order, the arbitrators, unlike mediators, must have been members of the Florida Bar for five years. The effect of this is to shift some of the court costs – of a jury, of the judge’s time — from the government and taxpayers to the litigants, and is in keeping with the goal of the courts to become funded more by user-fees. Litigants also pay for mediation. Trial lawyers have a number of objections to Judge Ross’ new mandatory arbitration system. For one, many are more comfortable with the standard litigation process and in being able to participate in the selection of the hearing panel — the jury — through voir dire. “You can eliminate jurors you feel are biased,” Liberman said. Secondly, they are concerned that arbitration will simply delay going to trial, which they view as inevitable. Also, they are concerned about the fact that arbitrations, unlike mediation, are not confidential. But the biggest anxiety is getting saddled with the other side’s attorney fees. This provision most likely will cause attorneys to think hard before rejecting an arbitration ruling and demanding to go to trial — exactly the goal of arbitration. “The fee-shifting does concern us,” said Jeffrey Hirsch, a shareholder at Greenberg Traurig in Fort Lauderdale, where the new arbitration was discussed at a recent meeting of all the Broward lawyers. “We were told, beware,” he said. Since Chief Judge Ross issued his order, Judge Lynch says he already has sent nearly 40 cases out of his total docket of 1,300 cases to arbitration and only two or three lawyers have objected to the arbitration referrals. He predicted that judges would be particularly likely to refer medical malpractice lawsuits to arbitration. Judge Greene said that when a detention hearing under the Jimmy Ryce Act for a released sex offender came up on his docket — which he knew could take 10 to 12 days — he referred dozens of longer cases to arbitration. “The ones that are more complex in their issues are more susceptible to arbitration,” Greene said. “It’s substantially less expensive than trying a case.” But medical malpractice lawyers are not convinced. Michael Petruccelli, a partner at McIntosh Sawran Peltz Cartaya & Petruccelli in Fort Lauderdale, who is representing one of the defendants in Amelia Falgas v. Douglas Michael Whitmore, M.D., Holy Cross Hospital Inc., Holy Cross Medical Group, Peter J. Eisenberg, M.D., Richard T. Baker III, M.D., and Radiologists of North Fort Lauderdale, filed an objection when Green ordered his case into mandatory nonbinding arbitration. Petruccelli called the judge’s referral to arbitration arbitrary, capricious and a denial of due process. The possibility of having to pay the plaintiff’s attorney fees if his client isn’t satisfied with the results of arbitration and requests a trial particularly concerns him. “You don’t know the circumstances of when attorney fees will be awarded,” he said. Scott Liberman, the plaintiff attorney in the case, also filed an objection to the arbitration referral. In his objection, he wrote that preparing to present his complex case to arbitrators “would be extremely expensive for all parties, would not aid in settlement of the case and would in fact be counterproductive.” Liberman also wrote that his client, Amelia Falgas, “is suffering from terminal cancer and requiring arbitration of this case prior to trial would unnecessarily delay that trial and could in fact, result in her passing away before trial could begin.” Judge Lynch acknowledges that some bugs need to be worked out in the wording of Judge Ross’ administrative order, including a sentence that limits the arbitration process to a maximum of four hours (it should have said four hours per day). “We’re seeking the feedback of lawyers,” he said. “We’ll change whatever needs to be changed.” But Lynch urges Broward lawyers to give Judge Ross’ mandatory arbitration order some time to work before judging it. “People are averse to doing things when they’re new,” he said. “They were against mediation. If this doesn’t work, it can be changed.”

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