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FDCC News
San Francisco, California and Committee Member Angela Flowers of Kubicki and Draper in Ocala, Florida prepared the amicus briefing filed in December, 2019. A 50-state survey was also prepared and submitted along with the FDCC’s amicus brief.
We have recently joined with
other state and national defense organizations in submitting comments to the Supreme Court, along with other FDCC members in Florida, in support of the
Rules Change. As we stated in those comments, “[t]he Court’s amendment promotes consistency, stability, and predictability in the law by harmonizing the standard governing summary judgment in Florida federal and state courts. Also, the amendment reflects a recent trend of states harmonizing their civil rules with the federal civil rules, such as in the areas
of expert evidence (see, e.g., In
re Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019)), and with respect to 2015 amendments to the federal civil rules governing discovery, such
as the federal ‘proportionality’ concept.”
In addition, we also proposed
that the Court clarify that the amendment applies to all summary judgment motions decided by the trial court on
or after May 1, 2021, including earlier-filed motions that are pending on May 1. The practical effect of the amendment would be delayed—perhaps substantially
delayed—if trial courts interpret the amendment to apply only to motions (or cases) filed on or after May 1. Likewise, the amendment should apply to any motion for reconsideration or rehearing of
a previously denied motion for summary judgment that is decided by a trial court on or after May 1, 2021.
Public Policy Amendments to
FRE 702
On October 19, 2019, the Chair of the Judicial Conference Advisory Committee for Evidence (“the Committee”), the Honorable Debra A. Livingston addressed a panel of federal jurists convened
to discuss the best practices of admitting expert testimony See, Conference on Best Practices for Managing Daubert Questions,
88 Fordham L.Rev. 1215, 1217 (2020) (part of The Philip D. Reed Lecture Series Advisory Committee on Evidence Rules). “We’ve been wrestling with Federal Rule of Evidence 702 for some time now, addressing whether we should recommend to the Standing Committee of the Rules of Practice and Procedure to take up a possible amendment to the Rule,” she began. Specifically, she explained, the Committee is looking now principally at the proposal to add
a provision about overstatement of an expert’s conclusion to the Rule.” Id. It is clear that the Committee is primed to suggest changes.
Thanks to our Executive Director Bernie Heinze and FDCC Defense Counsel Member Robert
Lockwood of Wilmer & Lee in Huntsville, AL on June 30, 2020 we submitted a statement to the Rules Committee Staff for the Advisory Committee on Evidence Rules. FDCC advocated to the Committee that Rule 702 should specifically provide that the proponent of the expert testimony bears the burden of establishing admissibility;
and that the Committee should include a note that clarifies that admissibility issues under Rule 702 should be determined by the courts as the gatekeeper and not left to the jury as weight issues under cross-examination. It is anticipated that the Advisory Committee will recommend changes to FRE 702.
FDCC Comments on
Emergency Rulemaking
Thanks again to FDCC Executive Director Bernie Heinze and Robert Lockwood, FDCC filed comments to the US Courts Committee of Rules of Practice and Procedure. We advocated that any emergency procedures should encourage simplicity, local professionalism and expedient justice. We opposed professional juries and unlimited emergency actions in light of
the recent experiences with the Covid-19 pandemic.
All of us appreciate the opportunity to serve on this Committee and look forward to the coming year advancing the views and voice of our members and our industry.
Jamie Huffman Jones is Chair of the FDCC Amicus Committee and a Partner at Friday Eldredge & Clark, LLP in Little Rock, AR. Contact her at JJones@fridayfirm.com.
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