This letter from Miami-Dade County Chief Judge Joseph Farina was recently emailed to Miami-Dade County attorneys asking us to get involved in the political process revolving around looming budget cuts.  According to Judge Farina:

The judicial branch was recently advised that due to the State of Florida’s budgetary deficit totaling approximately 4 billion dollars, the State Courts’ budget would have to be reduced by more than 16 million dollars by June 30, 2008. While this unanticipated reduction amounts to only 0.06% of the state budget, the loss of these funds would be devastating to  the judicial branch and its ability to provide access to justice and quality service to the public.

Should probate litigants “opt out” of the public court system? YES

As a “user” of Florida’s court system faced with the negative consequences of an underfunded system, I have the option of passively accepting the status quo and simply resigning myself to doing the best I can under less than ideal circumstances.  Another possible reaction is to opt out of the public court system whenever possible.  There are no jury trials in probate litigation, so these cases lend themselves to alternative dispute resolution mechanisms. At the drafting stage, the best way to “opt out” is by including mandatory arbitration clauses in your wills and trusts [I’m a big proponent of this option, click here]. In the absence of such clause, existing Florida law provides litigants and their attorneys a wide menu of ADR options to chose from, including:

[1]  Court-ordered mediation (F.S. 44.102).  This option is well-known and commonly used.  It’s not really an alternative to the public court system because there’s no third party acting as “judge” to resolve the dispute.  The parties either voluntarily come to an agreement – or they don’t – and end up right back in the public court system.

[2]  Court-ordered, nonbinding arbitration (F.S. 44.103).  This option is a little closer to private litigation because you have an independent third party making findings of fact and law that can end up in a legally-binding judgment.  Although the parties don’t have to live with the arbitrator’s ruling if they don’t want to, if you decide to reject the arbitration ruling and go back into the public court system for a trial you may have to pay the other sides attorney’s fees and costs if your after-trial judgment isn’t at least 25% higher than what you got from the arbitrator.  This can be a powerful incentive to stick with the arbitration ruling.

[3]  Special Masters (Florida Rule of Civil Procedure 1.490; Florida Probate Rule 5.697).  Special masters can perform a wide variety of tasks usually shouldered by the trial judge directly. They serve various roles in pretrial discovery and proceedings, facilitate the mediated settlement of cases, make recommendations and submit reports to judges, assist with complex issues, chair advisory committees composed of lawyers of record, help administer class actions and settlements, propose orders jointly recommended by the parties, make decisions based on judicial reference or the parties’ consent, and become engaged in post-trial proceedings.  In short, special masters are a flexible and commonly-used means of lightening the load for overburdened trial judges while also making life much easier for the litigants.  A recent Florida Bar Journal article by Howard R. Marsee entitled Utilizing “Special Masters” in Florida: Unanswered Questions, Practical Considerations, and the Order of Appointment does a good job of explaining all the ins and outs of using special masters in Florida litigation.

[4]  Voluntary trial resolution “VTR” (a/k/a “Private Judging”)  (F.S. 44.104).  I’m intrigued by this concept.  Why put up with an underfunded public court system when you can hire a judge with subject-matter expertise and get all the benefits of a trial and retain your right to appeal adverse legal rulings?

For more on Florida’s VTR statute you’ll want to read Voluntary Trial Resolution – The Most Overlooked Power Tool In The Shed by retired Florida judge Larry Schack, and Voluntary Trial Resolution: Tailor-Made for Employment Claims by Florida employment litigator Christopher M. Shulman.