Fifth District Changes Procedures for Extensions of Time

The Fifth District Court of Appeal has twice modified its rules regarding extensions of time in less than a month, reducing the availability of stipulated extensions and placing additional burdens on all attorneys seeking an extension for their clients.

Agreed Extensions of Time for Filing Briefs

Since 2013, the Fifth District has allowed parties to file a “notice” in lieu of a “motion” to obtain limited extensions of time for briefs in criminal and civil appeals, with certain exceptions.  The original administrative order authorized as much as 90 days for initial or answer briefs, and 60 days for reply briefs.

But in an amended order effective March 2, 2018, the amount of time available is now limited to 60 days for initial or answer briefs, and 30 days for reply briefs.

New Notice Requirements for Extensions

The Fifth District did not stop there.  In its March 27, 2018 Administrative Order A05D18-02, the Fifth District mandated that every extension request filed by an attorney must be accompanied by a certification that the attorney has provided a copy of the motion or notice to his/her clients.  This applies to all cases before the Court, and not just those that allow for the “notice” procedure discussed above.

The administrative order notes that it does not “require the client’s signature or consent,” nor does the certification have to include the client’s name, address, or signature.  According to the order, the attorney will comply with the order by certifying “by a statement included in the signed certificate of service on the motion or notice filed with this Court, that counsel has that day provided a copy of the motion or agreed notice to his/her client(s) via U.S. Mail, e-mail, or by hand delivery.”

The order does warn, however, that noncompliance with this requirement may result in the denial of any request for extension of time, whether by notice or motion.

What it Means to You

Given these added restrictions, we deduce that the Fifth District must perceive there has been some abuse of its extension procedures that require stricter regulation.  The new rules appear designed to increase attorney oversight by both the Court and clients.  Unfortunately, for those attorneys who do not abuse the process, these new rules will make seeking an extension slightly more difficult, and it will reduce the number of limited extensions available.  It remains to be seen whether other districts will adopt similar rules.

There is a strong likelihood that many who do not specialize in appellate practice will be caught off-guard by this new rule, and thus will have a motion or notice for extension denied or stricken.  We watch for rule changes like this because appeals are what we do.  Let us help you navigate the intricacies of the specific rules for each of the appellate courts in Florida to avoid getting caught in any procedural traps such as the ones created by these new rule changes in the Fifth District.

A final note — if you want a blast from the past, check out the article Jared wrote back in 2014 for the HCBA Lawyer on the issue of stipulated extensions of time when the concept was still brand new!

UPDATE: We’ve created a handy guide to help you keep the different courts’ rules straight. Click here to sign up for our newsletter and get a link to download the guide!

Can Judges and Lawyers Be Facebook “Friends”? It Depends Where You Are.

An attorney can be friends with a judge IRL (in real life). Now they can be Facebook friends too–at least in the Third District.

The Third District Court of Appeal, recognizing the evolving influence and role of social media in our society, has held that a judge should not be disqualified from a case for merely being Facebook “friends” with counsel for a party.

In Law Offices of Herssein and Herssein, P.A., v. United Services Automobile Association, 3D17-1421 (Fla. 3d DCA Aug. 23, 2017), the petitioners filed a writ of prohibition, seeking to disqualify the trial court judge because a potential witness and a potential defendant was listed on the judge’s personal Facebook page as a “friend.”

This issue has nearly a decade of history in Florida law.  In 2009, a Judicial Ethics Advisory Committee Opinion said that a judge may not add lawyers who may appear before him as “friends” on social networking sites, and vice versa.  In 2012, the Fourth District relied on the JEAC Opinion and granted a writ of prohibition, disqualifying a judge because he was Facebook “friends” with the prosecutor, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Then, in 2014, the Fifth District granted a writ of prohibition because the trial judge “reached out” to a party in a dissolution case while litigation was pending and tried to “friend” her on Facebook.”  Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014).  While clearly what the trial court did was wrong, and factually different than the issue in Domville, the Chace court went on to express “serious reservations about the court’s rationale in Domville.”  The Fifth District said that “there is no difference between a Facebook ‘friend’ and any other friendship a judge might have,” and that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge.”  The Fifth District also noted that “A Facebook friendship does not necessarily signify the existence of a close relationship.”

This is the legal landscape in which the Third District decided Herssein.  Preliminarily, the court recognized that merely being “friends” in the conventional sense has been historically insufficient to warrant disqualification of a judge.  It then latched onto the Fifth District’s statement regarding the closeness of Facebook “friends,” applying this rationale for three reasons:

  • “Some people have thousands of Facebook ‘friends,'”
  • “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” and
  • “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The Fifth District noted that Domville had been decided many years prior, in a quickly-evolving technological landscape–stated simply, times have changed.  It certified conflict with Domville, and denied the petition, holding that merely being Facebook “friends” with someone no longer demonstrates closeness of a relationship.

So where does that leave us practicing attorneys?

  • In the Third District, whether you are Facebook “friends” with a judge is irrelevant to whether your actual relationship is sufficiently close to warrant disqualification.  See Herssein.
  • In the Fourth District, being Facebook “friends” with a judge is sufficient on its own to warrant a disqualification.  See Domville.
  • The Fifth District’s dicta suggests it would side with the Third District, but it has issued nothing precedential upon which to rely.  See Chace.
  • Neither the First nor Second Districts have spoken on the issue.

First District Court of Appeal Requests Comments on Stipulated Extensions

The First District Court of Appeal is considering joining the Second, Third, Fourth, and Fifth districts in allowing parties to stipulate to enlargements of time in certain instances. From the First District:

The First District Court of Appeal, which is currently the only DCA that does not allow for stipulated enlargements.

Request for Comments On Consideration to Allow Stipulated Extensions of Time in Certain Cases

The First District Court of Appeal is considering adopting a court policy allowing attorneys to submit stipulated extensions of time for filing briefs in cases not requiring expedited review. To ensure full consideration of the impact of such a policy on the public and members of the Bar, the Chief Judge invites comments, which may be submitted electronically no later than August 31, 2017 to Jon S. Wheeler, Clerk of Court, at comments@1dca.org.

 

http://www.1dca.org/requestforcomments.html

Our vote is certainly yes! Let the judges focus on substantive motions rather than extension motions. No matter what your position, get your comments in before August 31st.