Shareholders Bruce J. Berman and Peter D. Webster recently published the 20th annual edition of Berman's Florida Civil Procedure (West Group), a leading treatise on Florida state practice and procedure. First published in 1998 after four years of work, the 2018 edition has grown to 1,300-pages and become an indispensable resource for both new and experienced attorneys with clients that litigate in Florida courts, and for many of the state's judges. During the conversation highlighted below, Bruce offered thoughts on the book in general, and noted a few of this edition's key updates.
Q: What makes this book so valuable?
A: It's an unusually comprehensive and meticulously-prepared resource. If you can't find it in this book, it probably doesn't exist. The book analyzes civil procedure rule-by-rule, with all rules cross-referenced to current case law. It includes the latest procedural issues, rule amendments, and thousands of citations to the most recent cases. It also compares the significant differences between Florida state and federal practice, even in instances where the language of the respective rules are practically identical. You can write a brief out of this book on nearly any procedural issue without doing any independent legal research. Florida trial judges have relied on the treatise, which has been cited in Florida appellate court decisions.
Q: Are there any updates that make the 2018 edition especially critical?
A: Every year, we make hundreds of changes to the book. For that reason, it's dangerous to use an old edition. It's not necessarily the individual changes that are important, as opposed to the across-the-board updates. For example, the book highlights key 2017 Florida Supreme Court decisions — on issues including the relation back doctrine and pre-suit screening requirements for medical malpractice claims, as well as disagreements among Florida's District Courts of Appeal that may soon be resolved.
Q: What did the court decide as to the relation back doctrine?
A: In Palm Beach County School Board v. Doe, the court recognized two principles articulated in the case law. One is that there is no relation back for a 'new, different, or distinct' cause of action. The other is that there is relation back where claims arise out of the same conduct, transaction, or occurrence. The court took the latter view.
Q: How have pre-suit screening requirements changed for medical malpractice claims?
A: Pursuant to 2013 amendments to Florida statutes [766.106 and 766.1065] potential medical malpractice defendants could interview a claimant's treating health care provider ex parte, as part of the statutory pre-suit screening requirements. The claimant was required to waive federal privacy protection. A three-judge panel of Florida's First District Court of Appeal unanimously decided this was a reasonable precondition to suit, and found the amendments constitutional. But last year, Florida's Supreme Court reversed, 4-3.
Q: Is Florida's Supreme Court poised to decide any particularly compelling issues?
A: The court has granted review of what may seem like a hyper-technical point that highlights the interplay of modern electronic communications with longstanding confidentiality protections. Historically, offers of judgment and motions for sanctions under section 57.105 had to be either mailed or hand-delivered. But as a result of apparently contradictory sub-sections of Rule of Judicial Administration 2.516 regarding service, there is a question as to whether these offers and motions must now be emailed, and Florida's Second and Third Courts of Appeal disagree. As a result, a lawyer who fails to properly serve the required notice — and that lawyer's client — may be surprised to find that, after meeting the conditions for the recovery of sanctions, the sanctions cannot be recovered after all. Seemingly little things like this can have an enormous impact, in this context exposing the unwary to potential malpractice liability.
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