Important Changes to Florida Rules of Civil Procedure

            The Supreme Court of Florida recently released opinions implementing critical changes to the Florida Rules of Civil Procedure. Generally, these changes relate to many aspects of case management, such as scheduling, pleadings, and discovery. One of these changes will have a particularly significant impact on defendants and how they must assert affirmative defenses. On June 6, 2024, the Supreme Court of Florida issued an order amending Florida Rule of Civil Procedure 1.110, which going forward requires defendants asserting affirmative defenses in their responsive pleading to provide a “short, plain statement of the ultimate facts that support [each] avoidance or affirmative defense.” In re Amends. to Fla. Rules of Civ. Proc., No. SC2022-1719 (Fla. June 6, 2024). Prior to this change, this standard was widely followed; however, with the amendment to this Rule, asserting supportive ultimate facts is now mandatory. This rule will go into effect on July 1, 2024.

            In addition to the changes to Rule 1.110, the Supreme Court of Florida also revised Florida Rules of Civil Procedure 1.200, 1.201, 1.280, 1.440, and 1.460, which will take effect on January 1, 2025. The purpose of these revisions is to “promote the fair and timely resolution of civil cases” and promote early judicial intervention to streamline the litigation process. In re Amends. to Fla. Rules of Civ. Proc., No. SC2023-0962 (Fla. May 23, 2024). Rule 1.200 was completely rewritten and now requires the assignment of each case into one of three categories within 120 days: complex, general, or streamlined. This gives the trial court flexibility in determining case management processes based on the needs and complexity of the case at hand. Moreover, Rule 1.280 now requires specific initial discovery disclosures be made within 60 days filing after the complaint and imposes an affirmative duty on the parties to continually supplement discovery responses as additional information or documents are revealed in discovery or through the parties’ respective investigations. This new framework mimics that which is imposed by the federal district courts throughout Florida. Much like the Court’s 2021’s revisions to Florida Rule of Civil Procedure 1.510 and the earlier revisions to Florida Rule of Evidence 702 (codifying the Daubert standard for experts), these changes demonstrate the Supreme Court of Florida’s ongoing preference for a “federalization” of Florida’s procedural litigation rules.

Rule 1.201 governs complex cases and was amended to allow trial courts to hold a hearing to determine if a case is considered ‘complex.’ Further, this rule also expressed that motions for trial continuances fall under Rule 1.460. In a complete sea change from prior practice, the Supreme Court’s changes to Rule 1.440 establish that the trial court is not precluded from setting a non-complex case for trial due to failure to close the pleadings.[1]

            All these rule revisions are notable for their focus on quickly getting cases to trial—or otherwise resolved through ADR due to the rapid acceleration of pretrial deadlines, preventing lawyers from letting cases sit idly after they are filed. Without explicitly saying so, these rule changes allude to the Supreme Court’s ongoing concerns that the post-COVID19 backlog of cases, along with the tsunami of new lawsuits filed in the lead-up to 2023’s tort reform deadlines, have created an untenable judicial workload in civil divisions across the state.

Defense attorneys and their insurance carrier clients must take care to begin the investigation of any new lawsuit immediately (even before the complaint is filed whenever possible). Because defendants who assert an affirmative defense now must plead a statement of the ultimate facts to support it, defense counsel should anticipate plaintiff attorneys will move to strike these affirmative defenses if they lack the proper facts to sustain the defense. Defense attorneys must now exercise their due diligence at the very onset of a case to discover the important facts in support of the affirmative defense and include these critical facts in their defense. It is no longer sufficient to state what the defense is; you must also state facts from the case that support the affirmative defense asserted. Furthermore, Defense counsel must be weary of the prospect of a lawsuit being set for trial on a date certain with an accelerated discovery timeline, even if a motion to dismiss is pending, or a Plaintiff’s amendment to the Complaint “reopens” the pleadings after the case has already largely progressed through pretrial discovery deadlines.

            In some respects, these changes will be advantageous to defendants if the courts strictly enforce the deadlines under the new case management structures. By providing litigants with a more direct timeline and deadlines that encourage significant early disclosures and meaningful discovery with fewer delays, it is incumbent upon defense counsel to seek judicial guidance when parties do not adhere to the deadlines but still expect the case to go to trial on time. Of course, this requires a heightened level of attention to detail to conform to the timeline requirements.

            Florida litigators have merely six months to adapt to the changes that go into effect in January and only a few weeks to begin practicing under the rule change regarding affirmative defenses, which goes into effect in July 2024. In general, lawyers should start advising their clients now on the importance of processing new lawsuits and assigning defense counsel as soon as possible, along with forwarding the concomitant preliminary investigation materials immediately. Defense counsel should modify “canned” affirmative defenses to remind them to assert ultimate facts in support of each before the answer is filed. Further, legal assistants need to be made aware of the new deadlines that will need to be calendared in every case and paralegals who handle discovery responses and document productions should create a workflow that will ensure initial disclosure deadlines are timely met.

While it remains to be seen whether these changes will have the intended effects of thinning out the caseloads of overburdened civil court judges, we should expect to see more amendments and modifications to the Florida Rules of Civil Procedure from the Supreme Court of Florida until the Justices are satisfied that practitioners throughout the state are moving cases to conclusion sooner and more efficiently. 

Links to the Court’s opinions: SC2022-1719 Opinion (flcourts.gov) / SC2023-0962 Opinion (flcourts.gov)


[1] See Mark D. Killian, Court Amends More Rules in Its Efforts to Streamline Civil Case Management, The Florida Bar (May 23, 2024), https://www.floridabar.org/the-florida-bar-news/court-amends-more-rules-in-its-efforts-to-streamline-civil-case-management/#:~:text=Rule%201.280%20was%20further%20amended,a%20duty%20to%20supplement%20discovery.\