Feds Buck Trend

Feds Buck Trend

Why did federal civil trials increase in the Florida Middle District?

By David R. Corder

Associate Editor

Contrary to a national trend, federal civil trial activity has increased over the past few years in the Florida Middle District.

Statistics from the Administrative Office of the U.S. Courts contrast the conclusions reported in a recent American Bar Association study published by University of Wisconsin professor Marc Galanter.

In the study, iThe Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,i Galanter quantifies what most judges and lawyers generally suspect from their experience in the federal courts. Statistics from the Administrative Office of the U.S. Courts show the total number of federal civil trials decreased by 63.5% between 1985 and 2002. And the number of federal civil lawsuits resolved by trial nationwide dropped to 1.8% in 2002 from 4.7% in 1985, when federal civil trials peaked.

In contrast, however, the number of civil trials commenced in the Florida Middle District o U.S. District Courts in Fort Myers, Jacksonville, Ocala, Orlando and Tampa o has increased since 2000. Jury and non-jury civil trials in the middle district increased by almost 112% between 2000 and 2003.

Reasons for the disparity are not so easily explainable. But middle district Chief Judge Patricia C. Fawsett and some federal bar attorneys offer anecdotal explanations as to why the district differs so starkly from the national trend.

iYouive got to be cognizant there are jurisdictions that have just a trial a month,i Fawsett says. iIn our district, we are in trial all of the time.i

Hard-working judges

In Karl J. Brandesi opinion, itis the hard-working judges in the middle district that account for a large part of the increase in civil trials.

iWe have one of the hardest working judiciaries in the country,i says Brandes, a Holland & Knight LLP partner who practices in the areas of antitrust, trade regulation and competition law in Tampa. iIf cases need to be tried, they roll up their sleeves and do the job. We have excellent judges in the middle district. They are well versed in the law, are extremely intelligent, yet they have a very good capacity to understand the various needs of the parties that come before them from very different walks of life. They also put in long hours. Iim not aware of any 9-to-5 judges in our courthouses.i

That may sound like hyperbole, but Fawsett says itis true. She recalls an instance where an attorney, who uses the courtis electronic case filing system, recently received an e-mail notice filed at 11:55 p.m.

iHe said, eWho would be doing that?i i Fawsett recalls. iI said, eThe judges.i Very often when I get to work at 7 a.m., I know the judges in all the divisions will be in at the same time. That is the culture of our court.i

Civil trials in the middle district increased to 220 for the fiscal year ended Sept. 30, 2003, up almost 112% from the 104 reported for the same time period in fiscal 2000. The total increased by slightly more than an 18% for fiscal 2003. It increased by more than 44% to 186 in fiscal 2002 and 24% to 129 in fiscal 2001.

Although the results are not yet publicly available, middle district officials estimate the number of civil trials dropped to about 190 for the fiscal year ended Sept. 30 this year. Thatis a 13.6% decrease and a possible departure from the three-year trend.

Of the three states in the federal 11th Circuit, the Florida Middle District ranked first in fiscal 2003 and 2002 in the total number of civil trials. The district outpaced even Floridais busy southern district, which annually reports the highest number of lawsuits filed within the circuit that also includes Georgia and Alabama.

Such growth accounts for why Fawsett puts so much emphasis on the need for additional federal judges. She has talked to members of the stateis congressional delegation, urging them to make judicial funding more of a priority.

iWeive gotten over 50% of the stateis population increase in our district,i she says. iOur caseload is getting heavier and heavier.i

Fawsett cites the caseload of U.S. District Judge John E. Steele in the Fort Myers division. Until recently, Steele solely managed a docket with about 1,014 weighted cases, those involving complicated legal issues or multiple defendants. The overload there was so serious the judges in the district supported Fawsettis decision to temporarily assign recently appointed U.S. District Judge Virginia Maria Hernandez Covington to Fort Myers instead of Jacksonville.

iWeire just bulging at the seams,i Fawsett says.

Thereis another group of judicial officers that contribute to this increased trend of civil trials within the middle district, Brandes adds.

iI know the (district) judges encourage the aggressive use of the U.S. magistrate judges to work cases,i he says. iThatis another thing weire seeing. Weire seeing a lot more cases tried by the magistrates.i

Most of the time, Brandes says, a magistrate can schedule a date-certain for a trial. That means a lawsuit can move much more quickly rather than waiting for a date to open on a district judgeis busy trial calendar. Of course, a lawyer does not have to consent to the use of a magistrate for a trial.

iHere in the middle district the magistrates are of such high quality that no one has any qualms about trying a case with a magistrate,i Brandes says. iActually, that could be a big factor in what youire seeing in the statistics.i

Policy shift

Thereis another possible reason for the increase, says Carlton Fields PA shareholder Edward J. Page. He cites the policy shift in the U.S. Department of Justice, which refocused a large amount of federal investigative and prosecutorial resources on terrorism.

In response to the 9/11 terrorist attacks, the U.S. Attorney Generalis Office embarked on an aggressive anti-terrorism strategy that usurped resources normally earmarked for complicated white-collar criminal prosecution, says Page, who practices in the area of white-collar defense among other areas.

White collar criminal trials require considerable time from the judges, says Page, who spent almost 10 years as an assistant Hillsborough County state attorney and another 10 years as a federal prosecutor prior to joining Special Prosecutor Kenneth Starr as a deputy independent counsel.

iThe U.S. attorneyis office simply is not making the large white collar criminal cases they were once doing,i he says. iYou can see the indirect effect here. The basic chain reaction is this: If there are fewer criminal trials, that frees up the district court judges around the middle district of Florida to focus on what else? Civil trials.i

Statistics may prove what Pages suspects. Criminal trials in the middle district dropped by 9.4% for the fiscal year ended Sept. 30, 2003. That followed a 2.1% decrease in fiscal 2002 and a 2.4% drop in 2001. However, the statistics show a 21.4% increase in criminal trials for fiscal 2000 o the year before the focus on terrorism activities.

Page isnit the only one who suspects such a dynamic shift. So does the middle districtis chief judge.

Fawsett still sees a steady flow of criminal cases but mostly on gun- and drug-related charges o crimes that usually end up with a disposition prior to trial. Instead, she sees an increased emphasis on terrorism-related prosecutions such as the indictment against Sami Al-Arian, the former University of South Florida professor accused of supporting middle east terrorist activity.

iMuch of the emphasis district-wide has been guns, violence and immigration,i she says. iConsequently weive not had the big white collar crime cases. Weive had some large cases of reference, Sami Al Arian, for instance. But the emphasis has changed with the U.S. attorney.i

Florida Middle District Civil Trials*

Lawsuits filedTrialsNon-juryJury%**

20035,462220125954.02

20024,593186138484.05

20014,77612967672.70

20004,88210451532.13

19994,72912654722.66

19984,67016169923.45

19975,48816066942.92

U.S. Civil Trials

Lawsuits filedTrialsNon-juryJury%**

2003252,9625,8303,2272,6032.30

2002274,8416,0153,3652,6502.19

2001250,9076,5133,5332,9802.60

2000259,5177,9334,5293,4043.06

1999260,2718,5324,7373,7953.28

1998256,7879,3495,2244,1253.65

1997272,02710,1555,6644,4913.73

*As of the 12 months ended Sept. 30 for each year. **Civil jury trials as a percentage of the total of all lawsuits filed.

Source: Administrative Office of the U.S. Courts (www.uscourts.gov).