Hurricane Dorian approaching Florida

How Does a Hurricane Affect Court Deadlines? (Dorian Edition)

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Hurricane Dorian approaching Florida

National Oceanic and Atmospheric Administration (NOAA) image of Hurricane Dorian taken Sunday, Sept. 1, 2019, at 17:00 UTC.

Even though we currently have sunny skies, many courts in Florida are closed today due to the threat of Hurricane Dorian (Specifically, the Second and Third Districts are closed today, and the Fourth and Fifth Districts are closed today and tomorrow, with the First and Florida Supreme Court still open as of this writing. How does that affect court deadlines? The short answer: In Florida state courts, you won’t know until the storm is over, so don’t count on a deadline moving. And in Federal Court, the courthouse being closed does not mean you can’t file, so your best bet is to meet any deadline today. Here’s the rules-geek long answer:

Deadlines in Florida State Courts

An emergency closure does not count as a “Court Holiday” under Florida Rules of Judicial Administration Rule 2.514(a)(6)(B) — the Courts are not calling it a “holiday,” and doing so probably has personnel implications that Court administration doesn’t want to deal with. However, the Florida Supreme Court generally issues administrative orders extending deadlines in the affected counties. Right now, the Florida Supreme Court’s emergency page states:

After a storm, orders will be issued by the Chief Justice retroactively extending deadlines in storm-damaged areas. Attorneys and others who missed legal deadlines or hearing dates in areas hard-hit by a hurricane will be protected by these orders, which will be issued once the courts in these areas reopen. They will be posted on our Administrative Orders page when issued.

(This from the Florida Supreme Court Emergency Page as of noon on September 3, 2019). As of this writing, there are no such orders in place, since the threat is not yet over. Check the Court’s administrative orders emergency page for updates. But also, we have not actually been hit so far, so I would be concerned that the Court is not going to ultimately extend deadlines for all. Even with Courts closed, meet all deadlines today, or timely seek extensions. The Florida appellate courts, in particular, are generous with timely-requested enlargements, so don’t hesitate to ask the Court for them.

But what about deadlines that are not normally allowed to be extended? Rule 1.090 states that, even for good cause, a Court:

may not extend the time for making a motion for new trial, for rehearing, or
to alter or amend a judgment; making a motion for relief from a judgment under
rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a
motion for a directed verdict.

We did this analysis for Hurricane Matthew, so check out our prior post on that one.

Deadlines in Federal Courts

The Federal Rules of Appellate Procedure state that when calculating deadlines computed as days:

if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

Federal Rule of Appellate Procedure 26(a)(2)(C). The Federal rules have an additional helpful provision expressly addressing “Inaccessibility” of the Clerk’s Office:

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s
office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended
to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

Federal Rule of Appellate Procedure 26(a)(3). But remember, a closure of the physical building does not make the clerk’s office inaccessible. For example, the Middle District of Florida website currently states:

UPDATE: 7:45 p.m. | Monday, September 2, 2019

On Tuesday, September 3, 2019, the Jacksonville, Ocala, and Orlando divisions are closed, and the Fort Myers and Tampa divisions are open.

On Wednesday, September 4, 2019, the Jacksonville division is closed, and the Fort Myers, Ocala, Orlando, and Tampa divisions are open.

CM/ECF remains available. The website will be updated if additional closures are required.

And the Eleventh Circuit does not even mention the hurricane on its website as of this writing, but since all filings are supposed to be made through ECF or through Atlanta, any “inaccessibility” argument won’t get very far.

Requesting Extensions After the Fact

Remember that if you miss a deadline in most courts, you have a higher burden to prove entitlement to the extension. Both state and federal courts are going to require a showing of good cause and excusable neglect. So meet your filing deadlines today, or at the very least get extension request on file before the deadline passes.

Is Memorial Day, May 27, a Court Holiday? (2019 edition)

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Memorial Day–May 27, 2019–is a day that we remember and honor those that have made the ultimate sacrifice for our freedom.  You probably already suspect that it is a court holiday, too

Navy Sailors and women in dress and large hats pose with flowers on a ship.

Memorial Day in 1918, just over a century ago.

But if you’re anything like us, you want–nigh, you NEED–to see it in writing from an authoritative source and you’ll probably be checking court websites at 11 p.m. on Sunday night to be sure.  Let us help.

The short answer is YES in Florida state courts.  Here’s the authority.

In Florida state courts, Memorial Day is one of the enumerated “Legal Holidays” in Florida Rule of Judicial Procedure 2.514(a)(6)(A) (.pdf) (defining “Legal Holiday”).

Additionally, every court lists Memorial Day on their own calendars:

Florida Appellate Courts

Florida Circuit Courts

Are you in federal court? You get the day off, too.

Was this post helpful? Subscribe for more!

This post is a continuation of our “Is it a holiday” series:

https://floridaappellate.com/2019/04/18/is-good-friday-a-court-holiday-2019-edition/

https://floridaappellate.com/2014/04/18/is-good-friday-a-holiday-it-depends/

https://floridaappellate.com/2015/01/19/is-martin-luther-king-day-a-holiday-in-florida-courts/

If you want to get updates on court holidays and other appellate happenings, subscribe to this blog under the “FLORIDA APPELLATE PROCEDURE UPDATES BY EMAIL” on this page.

 

You Used Daubert at Trial but Now it’s Frye? Here’s What the Appellate Court Might Do. (UPDATED–IT’S DAUBERT AGAIN!)

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***AUTHOR’S NOTE:  We published this article on May 20, 2019.  On May 23, 2019, the Florida Supreme Court did a completely unexpected about-face and adopted Daubert, receding from its prior opinions rejecting Daubert and rejecting the legislature’s amendment of section 90.702.  You can read the full opinion here: https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

We’ll follow up with an updated post once we see how the districts change their response to pending appeals on this issue.  In the meantime, the below information will still be helpful for understanding where this all came from, and to make an educated guess as to where your case will end up.  For now, if you’re in the trial court, use Daubert again (sheesh)!

Jared

__________________________________________________________________

 

So you and your trial court relied on the current version of section 90.702, Florida Statutes, and applied the Daubert test to determine the admissibility of a new or novel expert opinion. But now that your case is on appeal, the Florida Supreme Court has said that Daubert never applied and the Frye test applies in Florida. What will happen to your case on appeal? Two decisions from two Florida districts give us some hints.

The Florida Supreme Court building

The supeme court’s recent reaffirmance of Frye is requiring districts to develop methods for handling cases founded on Daubert.

A brief history of the Daubert/Frye issue in Florida

First, some brief background (which you probably already know). Frye v. United States, 298 F. 1013 (D.C. Cir. 1923) has long provided the test for admissibility of expert opinion in Florida and federal courts. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court held that a new test would apply for federal courts. But Florida courts stuck with Frye.

In 2013, the Florida Legislature amended section 90.702, Florida Statutes, to incorporate Daubert. But the Florida Supreme Court remained silent on the amendment for years and, in Florida, only the judiciary can formally adopt procedural rules. So Florida trial and appellate practitioners alike were left uncertain–should we use Daubert or Frye?

The intermediate appellate courts too were left without much guidance. The Fourth District held that it would apply the new statute–Daubert–because “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” Crane Co. v. DeLisle, 206 So. 3d 94, 100 n. 7 (Fla. 4th DCA 2016)[.pdf]. Most of the Fourth DCA’s sister districts also applied Daubert. See id. (listing cases from the First, Second, and Third Districts).

Well, in 2018, the Florida Supreme Court reviewed the Fourth District’s opinion and declared the statutory revision to section 90.702 unconstitutional, thereby reaffirming that Frye is the test to apply in Florida. Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018)[.pdf].

What happens to all the pipeline cases on appeal? It depends.

What happens to all the appeals from judgments pre-dating DeLisle, where the trial courts appropriately relied on the statute and the intermediate appellate decisions and applied Daubert?

Shortly after the supreme court issued its Delisle decision, the First District confronted this situation in D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Ass’n of Jacksonville, Inc., 44 Fla. L. Weekly D109, 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018)[.pdf]. Importantly, in Delisle, the supreme court had also reaffirmed that a Frye analysis is only required “when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id. at *4. By contrast, in D.R. Horton, “the trial court, albeit in the context of its Daubert analysis, found that Appellee’s experts used a scientifically reliable and peer-reviewed methodology that was the industry standard.” Id. at *4. In other words, there were no new or novel scientific techniques at play. Consequently, the First District held there was no need to remand for a Frye analysis–there was no legal basis for the appellate court to hold that admitting that expert’s opinion was invalid.

More recently, in Kemp v. State, 4D15-3472, 2019 WL 2083045 (Fla. 4th DCA May 8, 2019)[.pdf], on rehearing, the Fourth District held that use of the Daubert standard required remand for a Frye hearing. There, the State sought to introduce an expert that asserted he could determine whether a car was braking at the time of an accident based on the location and “arc[ing]” character of damage on the cars involved.

The trial court never considered whether this was “new or novel” under the Frye test because Daubert applied at that time. However, because the appeal was in “the pipeline” when DeLisle issued, the Fourth District was to apply Frye–if Frye applied at all to the facts of the case before it.

The Fourth District recognized that Frye would only apply if the scientific principles were new or novel, but unlike in D.R. Horton, the appellate court could not tell from the record. Hence, it remanded for the trial court to determine the matter. The court also ruled that, even if the trial court found the matter was “pure opinion” testimony and Frye did not apply, the trial court should still determine “whether the expert had training and experience in the specific method he used to reach his conclusions.” The court ruled that if the State failed its burden to prove the admissibility of the expert’s opinions, the court should grant a new trial for the defendant. If the State prevailed on proving the opinions admissible, the court should reinstate the defendant’s convictions and sentences.

The legal battleground for appeal will be whether or not the type of expert opinion provided is subject to Frye.

What we can gather from these opinions is that a case impacted by an expert opinion admitted under the Daubert standard will probably be reversed for further proceedings to determine admissibility under Frye, unless the opinion is of a type not subject to a Frye standard or the record already reveals the answer under Frye.

Thus, the argument for an appellee seeking to uphold a judgment based in part on testimony admitted under Daubert is that either the scientific principles upon which the expert’s opinion was based were not new or novel, or that the trial court made sufficient findings to demonstrate the Frye test was satisfied (even if not explicitly referenced). Both of these arguments are effectively identical to a harmless error analysis–even though the trial court applied Daubert, the application of that test had no impact on the outcome of the case.

Meanwhile, an appellant seeking reversal should argue that the expert’s opinion is based on new or novel scientific principles–so Frye applies–and the record does not demonstrate that the expert’s opinion satisfies the Frye test. And, as in most appeals of both civil and criminal appeals, the appellant should argue that it is the appellee’s burden to prove the error did not have an effect on the verdict (read more about this here).