In Florida, most practitioners have experienced a local rule or administrative order requiring the parties to “meet and confer” on any non-dispositive motion prior to scheduling a hearing. The local “meet and confer” requirement was a gatekeeper to the court, and perhaps more importantly, an obstacle to moving a case forward. In an effort “[t]o further assist case management,” the Florida Supreme Court amended the Florida Rules of Civil Procedure, adopting Rule 1.202 (the “Gatekeeper Rule”), which will be effective in January 2025. In re Amendments to Florida Rules of Civil Procedure, 386 So. 3d 117, 118 (Fla. 2024). The Gatekeeper Rule requires that, with the exception of certain dispositive motions outlined in subsection (a), all motions must include a “certificate of conferral.” Id. at Appendix, Fla. R. Civ. P. 1.202(b). This rule is meant to “better position[ ] [the trial judge] to address problems between the parties at a hearing.” In re Amendments, 386 So. 3d at 118. So, how does Florida’s new Gatekeeper Rule affect the parties in litigation?
Over the last fifteen years, the legal field has felt the backlog of court dockets, waiting months for the court to have availability for a 5 to 10 minute hearing—a hearing necessary to progress a case. Adding to the courts’ overwhelmed calendar, counsel may often ignore hearing requests, causing even more difficulty moving a case along. Now, under the Gatekeeper Rule, those intending to drag a case on indefinitely have another barricade to hide behind – and those desiring to expedite a case have another hurdle to overcome.
Noticeably, for now, there is no sanction tied to the Gatekeeper Rule. However, Florida’s new rule does not replace any local rules—or their sanctions.
The Ninth Judicial Circuit in Orange County, Florida established Administrative Order 2017-04, directing a mandatory “meet and confer” requirement prior to hearing on all but certain specified motions. See Admin. Order No. 2017-04 (Fla. Ninth Judicial Circuit, Orange County, May 30, 2017). This local administrative order specifically states that “[t]he term ‘confer’ requires a substantive conversation in person or by telephone…,” and rejects communications by e-mail, among other methods. Id. Although, not included in this rule, procedurally, the Judicial Assistants scheduling the hearings require the “meet and confer” date to be included in the request for hearing times, thereby ensuring the compliance of Administrative Order 2017-04. The Ninth Circuit’s Administrative Order 2017-04 also includes a mechanism whereby counsel can schedule a hearing absent a “meet and confer” when the opposing counsel refuses or fails to respond to three good faith attempts to “meet and confer.” Id.
The Seventeenth Judicial Circuit in Broward County, Florida implements Local Rule 10A. In re Unif. Motion Calendar, Ex Parte Motions to Compel Discovery, and Scheduling of Special Set Hearing for Circuit Civil and Family Hearings, Local Rule No. 10A (January 23, 2018). Under this local rule, all special set hearings require specific conferral language within the notice of hearing, and failure to include said language may result in sanctions, including attorneys’ fees. See id.
But, what happens when a local “meet and confer” is used as both a sword and a shield? Take, for example, a matter pending on the court’s docket for several years. One side’s counsel can take dilatory actions such as filing a motion, but then taking no steps to resolve the motion, or set the motion for hearing. Then, opposing counsel is forced to notice the motion for hearing, but may omit the conferral language. Although the filing attorney appears for the hearing on their own motion, they utilize the lack of conferral language to their advantage resulting in sanctions against the other party and its counsel. The only party benefitting from such behavior would be the party whose sole purpose is to delay.
While the Gatekeeper Rule may have its benefits, it also has its disadvantages. What is clear is that the rule creates certain consistency throughout the State, but only time will tell if that consistency is an unfortunate necessity.