Technology Changes at the Second DCA and Beyond

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Judge Stevan Northcutt’s fantastic presentation at the HCBA Appellate Section Luncheon today really brought home the drastic internal changes going on in the Courts of the state of Florida as the judges adapt to electronic filing. Judge Northcutt noted that in his 17 years as a judge on the Second District Court of Appeal, the internal procedures and case management system were practically unchanged — until the Court went to mandatory electronic filing through the portal last October.

The Old Way

For decades, the clerk logged each and every paper file wallet as papers came in, and the documents had to be delivered from office to office (and often via courier from Lakeland to Tampa and back). The assigned judges’ staff prepared compilations of the parties’ briefs, which were circulated on legal paper to reduce the volume of papers the judges had to carry around to assess cases. A petition for rehearing en banc would have to physically move from office to office as the judges considered the petition — a time consuming process.

The New Way

Now, file wallets are no more — everyone within the Court has access to the electronic file from their desktops. Within the judges’ suites, the judicial assistant still acts as a gatekeeper to assign out tasks, but instead of doing so by passing on a physical file, she electronically assigns tasks to staff attorneys and judges. It’s a brave new world of instant access, with all of the good and bad that comes with that. Certainly, it’s a tough transition for the entire profession to get used to reading and researching electronically.

And there is more work to be done on the e-Fax system — the judges are awaiting a voting module, for example, and E-Fax is not yet rolled out in the other DCAs, which are all still using the eDCA system.

Handling the Volume of Filings

Still, the move to electronic filing will assist with the ever-increasing volume of appellate filings. The court handles upwards of 6,000 cases a year, and since October 1, the Court has received about 7,000 documents through the statewide e-filing portal. These are only filings by attorneys, as pro se litigants cannot use the portal at this time, but the clerk’s office is scanning any paper documents into the electronic system. So all staff and judges now have access to the same file at the same time.

Most interestingly, the court is experimenting with changing the compilation system the judges have followed for ages. Judges Northcutt, Altenbernd and LaRose will be testing a new type of bench memo at a January sitting that includes a fully hyper-linked bench memo with links to the record and arguments in the brief.

.pdfs and Hyperlinking

The most practical tip, passed on at Clerk Jim Birkhold’s behest, is that attorneys should always file .pdfs, even though the portal can accept Word Perfect or Word documents. The system just converts those files to .pdfs for storage in any event, and something can get lost in the translation. If you want your document to look the way YOU want it to look, convert to .pdf before filing (and make sure it is converted if possible, or OCR’d if not, so that it meets the accessibility requirements of Florida Rule of Judicial Administration 2.526.

And here’s my own follow up tip: If you haven’t already, you pretty much have to invest in a copy of Adobe Acrobat Professional or another advanced .pdf manipulation program to ensure you are able to prepare the hyperlinks and bookmarks in electronic appendices as required by the Court. (The native .pdf program in Macs, Preview, can’t do the necessary hyperlinking, for example). It’s not technically difficult — here’s the tutorial I used to teach myself how to do it — but it’s not something you want to be teaching yourself when you are facing a deadline. Enough people have had problems with the requirement that the Court recently posted additional guidance regarding the requirement [.pdf]. And I know for a fact that the Court is rejecting filings that are not hyperlinked.

In any event, thank you again to Judge Northcutt for an enlightening presentation!

RSVP Today for HCBA Appellate Section Luncheon on January 7, 2014!

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Don’t wait — RSVP today for the Hillsborough County Bar Association’s Appellate Section Luncheon at Noon on Tuesday January 7, 2014. The Honorable Stevan T. Northcutt from the Second District Court of Appeal will address “The Impact of Recent Technology Changes on the Second District’s Processing and Resolution of Cases.” The Second District Court of Appeal was the first of the DCAs to go to eFiling using the statewide portal, with electronic filing becoming mandatory on October 1, 2013. Judge Northcutt’s talk promises to provide practitioners with valuable insight into the changes to the Court’s internal procedures since the migration to eFiling. Here’s the RSVP details:

Noon
The Chester H. Ferguson Law Center
1610 N. Tampa Street
Tampa, Fl 33602

Members: $18.00 Non-Members: $30.00

RSVP by Phone: 813-221-7777, E-Mail: hcbarsvp@hillsbar.com, or online.

Don’t wait to walk-in — walk-ins are charged $5 extra, and they may not have enough meals. Hope to see you there!

Dineen Pashoukos Wasylik is the co-chair of the HCBA Appellate Section.

Attorneys Fees and Costs after Voluntary Dismissal Under 9.350(b)

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A colleague recently asked me whether a notice of voluntary dismissal of an appeal should deal with or mention attorneys fees and costs. In Florida’s intermediate appellate courts the appellant can voluntarily dismiss the appeal by filing a notice of voluntary dismissal with the court, pursuant to Florida Rule of Appellate Procedure 9.350(b). (Notice the contrast to trial court practice, where it is service of a notice of voluntary dismissal, not filing, that ends the case, per Florida Rule of Civil Procedure 1.420). But what is the effect of that dismissal on a claim for attorney’s fees, and is the appellee entitled to costs?

Entitlement to Fees and Costs

The case law on this issue is sparse, but makes it clear that such a dismissal likely renders to the appellee the prevailing party for purposes of the fee and costs analysis. The Third District has stated that, while an appellee may technically be entitled to fees and costs, the court will not grant a fee award before any briefing has occurred because appellee’s fees would be de minimus. See Sanchez v. State Farm Florida Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008) [.pdf]. The First District more recently disagreed with this de minimus stance (and with Judge Judge Shepherd’s dissent in Sanchez), holding that there is no de minimis exception when determining entitlement to a fee award. First Real Estate, LLC v. Grant, 88 So. 3d 1073 (Fla. 1st DCA 2012) [.pdf].

And while the Second District Court of Appeal hasn’t ruled on this issue in the context of voluntary dismissal, it has signaled that it would like to follow the de minimus approach of the Third District, but feels constrained by the statute to allow at least offer of settlement attorneys fees when an appeal has been dismissed prior to briefing. Braxton v. Grabowski, No. 2D12-2708, ___ So.3d ___, 38 Fla. L. Weekly D1157 (Fla. 2d DCA May 24, 2013) [.pdf]. In Braxton, the appeal was dismissed for lack of prosecution rather than voluntarily dismissed (or at least, the voluntary dismissal crossed in the mail with the dismissal order, and because at the appellate level voluntary dismissal is accomplished by filing not service, the lack of prosecution order was the operative order). Still, the court concluded on rehearing that it had no choice but to grant the appellee’s motion for attorney’s fees under Section 768.79, Florida Statutes.

Practical Effect on Costs

Even if the appellee is entitled to costs, are there any costs to collect? Not likely. Taxable appellate costs are very narrowly defined as:

(1) fees for filing and service of process;
(2) charges for preparation of the record;
(3) bond premiums; and
(4) other costs permitted by law.

None of these narrow class of costs were likely paid by the Appellee. So while there may be entitlement, there’s most likely nothing to tax.

Practical Effect on Fees

If a voluntary dismissal is filed, best to serve that attorney’s fee motion quickly. A motion for appellate attorneys fees is generally due pursuant to Florida Rule of Appellate Procedure 9.400 “not later than the time for service of the reply brief” and where no reply brief will ever become due, it is unclear what the deadline would be. Entitlement to fees is not automatic — the Appellee must still show that there is a legal basis, either in statute or contract, for the award.