The courts are clogged. Funding problems have forced many circuits to cut judicial support staff. That has overloaded the civil divisions, made hearing times hard to get, and filled up the trial dockets. Although arbitration might be a good option in some cases, the process limits discovery options and forces the litigants to waive their jury trial and appellate rights.  For parties who are unwilling to accept those restrictions, private civil trials might provide a practical solution.

The idea of private judging is gaining traction. Many states’ laws now permit private civil trials.[i] The proceedings are extremely popular in states where the courts are flooded with cases, like California.[ii] The Judicial Conference of the United States has even endorsed the use of summary jury trials—a nonbinding form of private trials using lay jurors—in the federal circuits.[iii]

Florida’s Private Trial System:  Voluntary Trial Resolutions.

Even Florida has embraced the concept of private trials. In 1999, the Trial Lawyers Section of the Florida Bar sponsored legislation patterned after California’s system.[iv] The legislature passed the bill, which appended a new proceeding—the voluntary trial resolution—to Florida’s existing procedural statute on arbitration.[v]

Under the new provisions, found at Fla. Stat. § 44.104, parties may enter into an agreement to have a dispute determined by an attorney sitting as a private trial resolution judge.[vi] The agreement may be contained either in a pre-existing contract or a separate resolution voluntarily adopted by the parties at any time.[vii] But, to be eligible for the VTR process, the matter cannot raise a constitutional question; involve a child custody, visitation, or support issue; or affect the rights of an indispensable but unwilling third party.[viii]

If a VTR-eligible case is not already pending in the court, a party may initiate the process by submitting an application to the local judicial circuit’s clerk.[ix] The filing fee is the same as for any other civil action.[x] And, filing tolls the running of all applicable statutes of limitation.[xi]

The attorneys must then agree on the appointment of the trial resolution judge.[xii] Only an attorney who has been a member in good standing of the Florida Bar for more than five years can serve as the resolution judge.[xiii] If the parties don’t agree within 10 days, the court will select the resolution judge for them.[xiv]

Voluntary Trial Resolutions Differ from Arbitration Proceedings.

Private judging is only superficially similar to arbitration. Each procedure avoids the expense of traditional trials, accommodates the scheduling needs of the litigants, and allows the parties to pick a person with specific knowledge of the area of law or factual context of the dispute. But, while arbitration is quite informal and relaxed, resolution judges conduct hearings under the same procedures and with the same formality as traditional court judges.

This is true because both the Florida Evidence Code and Rules of Civil Procedure apply to VTR proceedings.[xv] The statute empowers the trial resolution judge to administer oaths, conduct the proceedings, issue subpoenas and render a final decision.[xvi] If a party or witness fails to comply with any ruling, the private judge may apply to the court for orders compelling attendance and production of documents.[xvii]

And, where arbitrations come with virtually no appellate rights, a VTR litigant may appeal a ruling on points of procedure, resolution judge bias, or constitutionality grounds.[xviii] The presiding circuit court hears the appeal.[xix] In doing so, it must accept all factual findings the resolution judge made[xx] and follow the harmless error doctrine.[xxi] Theoretically, these restrictions strike a balance between unfettered court judgment appeals and a complete lack of arbitration award review.

Nevertheless, one thing would readily set VTRs apart from arbitrations:  a jury resolution option. Although the statute does not expressly state that empanelling a VTR jury is possible, it does permit the resolution judge to follow all rules of procedure. The Thirteenth Circuit, in fact, has issued an administrative order providing for the use of court jury pools in resolution proceedings.[xxii] Unfortunately, no published opinion has yet addressed their propriety.

Recognizing this ambiguity, for each of the last two years, the legislature has worked on a bill to amend the VTR statute to expressly allow for jury trials.[xxiii] Both bills died in committee review, however, and no bill has been introduced in the current session.

All things considered, the risk of having a costly jury resolution discarded is probably too great for many attorneys to venture beyond the express language of the statute.

Is Voluntary Trial Resolution a Practical Litigation Alternative?

The courts have not kept statistics on the use of VTR proceedings in Florida. The lack of publicity suggests that they have been rarely used. And, no published study has tried to measure their efficacy.

While the VTR certainly offers speed and flexible scheduling, those come at the price of private justice. It’s entirely conceivable that a lengthy VTR on complex issues might cost more than $50,000 in private judge’s fees. Only wealthier parties can afford that.

On the other hand, litigants using VTRs would have the benefit of choosing someone with an expertise in the subject matter. That could translate to less time spent on fundamental issues, making for much shorter trials. Cost savings like those ought to help offset the additional expense. And, that might make trial resolutions a cost-effective alternative after all.

While it is true that those same benefits are available in arbitration, VTRs are governed by more predictable and formal rules. They also permit full discovery and appellate rights with a reasonable degree of privacy. Hence, using them might work better in complex, unusual, or lengthy cases, especially ones with sensitive issues; or, if juries are allowed, cases where credibility is a factor.

In sum, voluntary trial resolutions are a relatively new and untested third option. They could serve as a viable middle ground between an informal and unreviewable arbitration and a drawn out and public court battle, particularity if juries become available. Only time will tell if practitioners find the private trials useful.

[i] Corbin, Lillian (1999) “Private judging in California,” ADR Bulletin: Vol. 1: No.7, Article 3. Available at http://epublications.bond.edu.au/adr/vol1/iss7/3.

[ii] Haynes, Stephen K., Private Means to Public Ends:  Implications of the Private Judging Phenomenon in California, 17 U.C. Davis L. Rev. 611 (1983-1984).

[iii] See 28 U.S.C. § 331. For a complete description of summary jury trials, see generally Lambros, Thomas D., The Summary Jury Trial Report to the Judicial Conference of the United States, 103 F.R.D. 461 (1984).

[iv] Private Judges, Expedited Trials May Cut Costs, Delays, 12/15/1999 FLBN 1.

[v] See ch. 99-225, § 3 at 4-6, Laws of Fla.

[vi] Fla. Stat. § 44.104(1).

[vii] Fla. Stat. § 44.104(2).

[viii] Fla. Stat. §§ 44.104(1) and (14).

[ix] Fla. Stat. § 44.104(5).

[x] Fla. Stat. § 44.104(5).

[xi] Fla. Stat. § 44.104(6).

[xii] Fla. Stat. §§ 44.104(2) and (4).

[xiii] Fla. Stat. § 44.104(2).

[xiv] Fla. Stat. § 44.104(4).

[xv] Fla. Stat. §§ 44.104(7) and (9).

[xvi] Fla. Stat. § 44.104(7) and (8).

[xvii] Fla. Stat. § 44.104(7).

[xviii] Fla. Stat. §§ 44.104(10)(a)-(c).

[xix] Fla. Stat. § 44.104(10).

[xx] Fla. Stat. §44.104(10).

[xxi] Fla. Stat. § 44.104(12).

[xxii] See Admin. Order S-2001-027, Thirteenth Judicial Cir. Ct.

[xxiii] See S.B. 130 (2010)/H.B. 13 (2010); S.B. 1420 (2011).