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I have posted on the proposals pending before the Florida Supreme Court for reform of the civil practice in Florida. They are lengthy and involved. With a great deal of perseverance and patience, they are worthy of attention and study. As mentioned in Civil Rules Reform (January 2023), one of the main focus points highlighted in the news is sanctions, "tough sanctions."
The report candidly notes that
"the civil rules include only scattered references to sanctions that the trial court may impose"
Therefore, there is a proposal for "a single rule delineating available sanctions and codifying certain sanctions-related case law." The proposal is for a "new rule, numbered 1.275." The sentiment seems strong that those who are not complying with rules and orders need to be dealt with in the civil practice, that there is "a growing culture of noncompliance in the absence of consequences for failing to follow the rules.”
Proposed civil rule 1.275 is as follows:
RULE 1.275. SANCTIONS (a) Generally. The court may impose a sanction if a party or attorney fails to comply with these rules or with any court order arising out of a case filed pursuant to these rules. To the extent any rule of civil procedure specifies options for sanctioning misconduct, the sanctions set forth in this rule shall be deemed supplemental to such other rule, as appropriate.(b) Available Sanctions. On a party's motion or on its own motion, the court may enter appropriate sanctions concerning such conduct unless the noncompliant party or attorney shows good cause and the exercise of due diligence. Such sanctions may include, but are not limited to, one or more of the following measures:(1) reprimanding the party or attorney, or both, in writing or in person;(2) requiring that one or more clients or business-entity representatives attend specified hearings or all future hearings in the action;(3) refusing to allow the party to support or oppose a designated claim or defense;(4) prohibiting a party from introducing designated matters in evidence;(5) staying further proceedings, in whole or in part, until the party obeys a rule or previous order;(6) requiring a noncompliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) incurred by the opposing party because of the conduct;(7) reducing the number of peremptory challenges available to a party;(8) dismissing the action, in whole or in part, with or without prejudice;(9) striking pleadings and entering a default or default judgment;(10) referring the attorney to the local professionalism panel or The Florida Bar; and(11) finding the party or attorney in contempt of court. (Emphasis added).
Are these sufficient (even in light of the "not limited to" that is included)? Would any of these suggestions be workable or desirable in the workers' compensation litigation process? The standard in workers' compensation is in Rule 60Q6.125:
(1) Generally. Failure to comply with the provisions of these rules or any order of the judge may subject a party or attorney to one or more of the following sanctions: striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate.
These are confined, however, with the cautionary constraint:
(4) A sanction imposed for violation of these rules shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Penalties, fees, and costs awarded under this provision may not be recouped from the party unless the party has committed the violation.
(5) Any order imposing sanctions shall describe the conduct determined to constitute a violation of the rule or statute and explain the basis for the sanction imposed.
Thus, there is a spirit of sanctions being narrowly focused, limited to what is necessary, and explained such that there is clarity as to both the present instance and guidance for the future. But, what of the proposals in the Civil arena? Would they have merit in workers' compensation?
(1) reprimanding the party or attorney, or both, in writing or in person;
There have been JCCs that have attempted to send lawyers to continuing education programs as punishment for violating Bar rules, but without success. Pace v. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286 (Fla. 1st DCA 2004). That is likely not the same as a reprimand for violating practice rules. I have seen many JCC orders that reprimanded or admonished a party or counsel.
(2) requiring that one or more clients or business-entity representatives attend specified hearings or all future hearings in the action;
This is a sanction we have seen on many occasions as regards missed mediations and hearings or failure to comply with agreements or orders.
(3) refusing to allow the party to support or oppose a designated claim or defense;
The striking of claims or defenses is certainly in the JCC toolbox, but the appellate court has been persistent in its reminders that such a serious sanction should be essentially a last resort and only upon a finding of willfulness. Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(4) prohibiting a party from introducing designated matters in evidence;
This is certainly in the JCC toolbox and has occurred in a multitude of cases. However, it is likely limited to the "actual prejudice" standard discussed by the Court in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
(5) staying further proceedings, in whole or in part, until the party obeys a rule or previous order;
The authority to enter a stay has not been granted to the JCCs. Alachua Cnty. Adult Det. Ctr. v. Alford, 727 So. 2d 388, 389 (Fla. 1st DCA 1999). But, perhaps a JCC could continue the trial or hearing until such time as compliance occurs.
(6) requiring a noncompliant party or attorney, or both, to pay reasonable expenses (as defined in this rule) incurred by the opposing party because of the conduct;
This has certainly been imposed by JCCs at various times and in particular circumstances. This has included payments to physicians as regards depositions or other appointments.
(7) reducing the number of peremptory challenges available to a party;
There are no juries in workers' compensation, and this would seem irrelevant.
(8) dismissing the action, in whole or in part, with or without prejudice;
This seems different from (3) only in terms of the degree or extent of the impact. It would seem that this likewise is within the discretion of hte JCC, but subject to the Court's cautions regarding its severity.
Lincoln Assocs. & Const., Inc. v. Wentworth Const. Co., 38 So. 3d 155 (Fla. 1st DCA 2010).
(9) striking pleadings and entering a default or default judgment;
This is similar to (3) and (9) and is again seemingly more of an extent or degree than a separate sanction in workers' compensation.
(10) referring the attorney to the local professionalism panel or The Florida Bar; and
This authority certainly exists, and is in fact mandated. RULE 4-8.3 REPORTING PROFESSIONAL MISCONDUCT "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority. (b) Reporting Misconduct of Judges. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office must inform the appropriate authority.
(11) finding the party or attorney in contempt of court.
It is clear that this is not within the JCC's authority. Pace v. Miami-Dade Cnty. Sch. Bd., 868 So. 2d 1286 (Fla. 1st DCA 2004). However, the JCC can refer a matter to Circuit Court for summary proceedings as regards the enforcement of an order. See No Reply at All (January 2023).
Will the practice of workers' compensation need additional sanction paths, or greater use of those that exist? Is the informality that we have all come to appreciate too much with respect to practitioners of some character? There is a perception that the speed limits are set at 70 because they know people will speed. Thus, if 70, people will drive 80, but if the limit were 80, then they would drive 90. Thus, perhaps, there is some benefit to all in our community familiarity and informality, but if the bar is too low perhaps some will take advantage of each other to the detriment of all? Perhaps, at times, there is a need for some tickets to be issued for all to remember there are constraints and rules?
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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