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Justice for Sale? A Review of Private Trials in Florida

Private trials have been an option for Florida for 12 years. A judge-for hire renders a decision that must be rubber-stamped by a circuit judge but can be appealed. Only a few attorneys have offered the service, and most are retired judges. They report its use remains rare. In last several months, numerous individuals have written about Florida's law allowing private trials since 1999 and admit that few lawyers even know that the statute allowing such trials even exists.

No one has promoted the cause more than retired Miami-Dade Circuit Judge Paul Siegel, who advertises offering his first trial for free. Siegel argues that the time has come for lawyers to embrace this option, which offers a speedy trial that likely costs upwards of $20,000. Siegel argues that while the price seems hefty, for cases destined for trial, it offers potential savings by avoiding delays.

Those of us who practice in Miami-Dade county know what these delays are--a rolled-over trial calendar after months spending preparing the case for trial; judges advising the parties after they have advised the court that a case will take one week to try, the court setting the trial schedule from 10:00 am to 4:00 pm, cutting out two hours a day of trial testimony, potentially pushing the case towards mistrial if the one week trial cannot be completed; and the list goes on and on.

Some of the advantages touted in private trials is that it is a good substitute for arbitration. This is because in private trials, the rules of evidence apply, where some argue that arbitration is a "free for all." Another advantage cited is cost. Arbitration is arguably more expensive because the cost of hiring a single judge is lower than hiring three arbitrators and paying administrative fees to entities like the American Arbitration Association. Another advantage of private trials is the fact that they are conducted in secret, which is seen as an advantage by some in family law cases.

The disadvantages of private trials include the fear that private judging could give businesses another avenue for litigating on corporate-friendly turf. The concern is that the rarely used private trial option will gain popularity with credit card companies and cellphone service providers, which can insert clauses in customer agreements forcing customers to resolve disputes before a private judge. Companies already do that with arbitration, but private trials would allow for yet another layer of secrecy--and theoretically before a private judge who would lean in favor of the corporate clientele that funnels the private judge cases. Another cited disadvantage of private trials is that cutting the number of cases tried in public means a reduction in the legal precedent other judges and parties may draw upon. Finally, many representing consumers and average citizens say that the use of private trials basically says that "I have no faith in our current judiciary."

Ultimately, time will tell if private trials will gain traction. In other jurisdictions, it has created a system open mainly to the rich, such as divorcing celebrities, as a way to speed up their breakups, obtain the judge's undivided attention and keep the dispute and the findings, private. The parties will be able to hire a judge who will sit there as a captive audience from 9 in the morning to whenever the parties agree and the case will be heard according to the schedule set by the parties, not a congested docket. While private judging is "not a panacea", it does allow a constructive and practical response to the lack of resources being provided to an overworked, underpaid judiciary, that renders the our judicial system less responsive and more expensive than it should be.

More in-depth reporting on private judging is reported in the Daily Business Review for Miami-Dade County. If you are interested in receiving the full article or wish to contact me, you may do so by writing to me at miamipandi@comcast.net or at motero@houckanderson.com

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