How to Have Your Day in Court When the Courts Are Closed: Alternatives to Trials During the COVID Pandemic

Florida Courts are facing an unprecedented backlog of trials given the nation’s COVID-19 pandemic. Many practitioners are unaware of an underutilized procedure in Florida that allows for civil cases to be decided by private judges, i.e. “trial resolution judges.”[1] Unlike other forms of alternative dispute resolution (“ADR”), such as arbitration, voluntary trial resolution before a trial resolution judge offers parties the same benefits, they would receive in a traditional court trial. For example, private trial judges, unlike arbitrators, are required to follow the Florida Evidence Code in conducting a trial.

How Is the Process Started?

Private trials are governed by Section 44.104 Florida Statutes. This law provides that “two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to…voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved.”[2] Section 44.104(1)provides that parties do not have to agree prior to a lawsuit being filed. Instead, the Statute permits parties to agree to use voluntary trial resolution after a lawsuit has been filed., The court will appoint the trial resolution judge within 10 days after the submission of the request for voluntary trial resolution. Once appointed, the trial resolution judge selects the time and place for the hearing. An application for voluntary trial resolution is filed and fees are paid to the clerk of court in the same manner as they would be for complaints initiating civil actions.

Which Type of Dispute Is a Trial Resolution Judge Authorized to Hear?

Most civil disputes are eligible for a private trial. However, Section 44.104 has certain limitations. For example, a private trial cannot be held where the outcome affects a party who does not agree to participate.

Can a Trial Resolution Judge Decide a Family Law Dispute?

Yes. Section 44.104 does not prohibit a trial resolution judge from hearing certain family law matters. However, the Statute does not permit the voluntary trial resolution to be utilized for a dispute involving child custody, visitation, or child support. In family law actions, this would permit the use of voluntary trial resolution in dissolution trials with no minor children, as well as in post-judgment disputes that do not involve child custody, visitation, or child support.

What Authority Does a Trial Resolution Judge Have When Conducting Voluntary Trial Resolution?

Section 44.104 expressly states that trial resolution judges “may administer oaths or affirmations and conduct the proceedings as the rules of court shall provide.” Moreover, the Statute states that at the request of any party, the trial resolution judge “shall issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production. Subpoenas shall be served and shall be enforceable in the manner provided by law.”

Do Parties Retain Their Appellate Rights Under Voluntary Trial Resolution?

Yes. The Statute provides that parties retain their right to appeal all questions of law. Section 44.104 explicitly states: “upon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not subject to appeal.”

Why Use a Trial Resolution Judge?

As a result of Florida’s currently strained court dockets, parties are being forced to wait extended periods of time to have their matters resolved. Voluntary trial resolution offers a solution for parties who wish to resolve their disputes in a more timely manner. While it is true that parties would have to compensate the voluntary trial judge, this may prove to be a viable tradeoff for parties seeking a quicker resolution. Another benefit of voluntary trial resolution comes from the fact that a private judge may have more time than a Circuit or County Court Judge to delve into the significant issues involved in a dispute. In summary, while a trial resolution judge may not be an option for every legal dispute, there are certainly situations where parties can benefit from voluntary trial resolution.

[1] See, e.g., §44.104, Fla. Stat.

[2] §44.104(1), Fla. Stat.