What are Lawyers saying about Remote Proceedings? Shendell & Pollock, P.L. Attorneys share their thoughts on the virtual process and what they have observed. What are your thoughts? It appears in one form or fashion attendance at routine and non-evidentiary hearings post COVID-19 is likely here to stay for civil cases, but not trials. As reported in the Florida Bar News June 2021 edition, the Florida Bar published a “healthy response” from the COVID-19 Recovery Task Force subcommittee to continue Zoom hearings. In this regard, there is a current proposal before the Supreme Court to change the Rules of Judicial Administration Committee to amend Rule 2.530, which governs activities utilizing “Communications Equipment.”

It is important to note that the proposed changes allow parties to object to the request for a Zoom hearing. In the event of a dispute, the presiding Judge will have the discretion to overrule any such objection. From a practice standpoint, potentially there will be a requirement that all Notices for hearings state whether the parties have stipulated to Remote Proceedings. The proposed changes go so far as to allow even evidentiary hearings if the parties agree. Whether Remote Proceedings may be available for evidentiary hearings will be considered by the Court on a case-by-case basis.

Additionally, one practical result of the routines of Remote Proceedings that have arisen out of COVID19 is that it is highly likely attendance at depositions via Zoom will also continue in large measure. However, we are already seeing where lawyers/parties seek to manipulate Zoom deposition attendance to fit their purpose. For example, lawyers are strategically seeking to protect their clients and perhaps key witnesses from live depositions so that those deponents are not subject to a live and potentially intimidating cross-examination that can only occur during a live deposition. We anticipate that Motion practice in these areas will increase as there will undoubtedly be disputes on how particular depositions are to proceed.

Also, regarding depositions, an observation our firm lawyers have made is that there are many instances where the integrity of the deposition process may be compromised. We have experienced instances where undisclosed individuals are sitting in the room with deponents, perhaps providing notes or writing on boards to coach answers to questions. Our firm is instituting a firm procedure for each remote deposition, where our lawyers ask both the deponent and opposing counsel to confirm no one has coached the witness in any way.

The final approval of the above-discussed changes to the Rules of Judicial Administration will be determined by the Supreme Court, to which we will confirm at that time.

As always, if you would like further information on the above topic, or a presentation on this and other topics, Shendell & Pollock would be pleased to do so for your group. For more about the firm, please visit www.shendellpollock.com

Who Are We?
________________________________________

Shendell & Pollock, P.L. is a full-service litigation and business law firm providing a comprehensive range of services to a wide variety of clients, including publicly traded companies, privately owned businesses, banks and insurance companies, financial institutions, and private lenders & more.

    As the COVID-19 pandemic continues to impact so many industries, the construction and design industries are no exception. We have interviewed major contractors and design professionals throughout the state of Florida and New Jersey to discuss the practical impacts of the pandemic on many projects. The primary impacts of COVID-19 that were identified in our interviews are suspension, lost productivity and material shortages.

     Many contractors are very concerned that as projects are suspended or slowed, there is the potential that idled workers will not return to their projects. Due to cash flow concerns as many contractors are face challenges onboarding projects crew continuity is becoming an impediment to project delivery. For example, where previously contractors had a pool of skilled full-time employees or independent contractors assigned to projects those same projects are being staffed temporary worker, many of whom are added to projects as others leave for other jobs. The Impact on labor due to the COVID-19 pandemic is unprecedented, however we are finding that many firms are adapting and finding ways to mitigate the impact upon their projects. Specifically, firms are mandating that employees receive regular tests, and should anyone test positive that person is required to work from home if possible. Similarly, subcontractors are required to be tested, and should any subcontractor or subcontractor employee refuse to be tested, that subcontractor can be terminated from their contract. It’s important for all contractors to include language within their contract that allows for the termination of the contract for convenience as this provides the primary legal means for the termination of a subcontractor who refuses to test for COVID-19 and could potentially expose other personnel to the disease.

    Many contractors whom we interviewed mentioned they are having problems with material delays, which is effecting critical path delays and delivery of projects on time. Specifically, many firms are finding it difficult to acquire specialized and prefabricated materials due to COVID-19 impacts at the production facilities. The range of materials impacted by COVID-19 includes everything from complex fabricated switchboards and other electrical equipment, to plumbing equipment, elevators, and prefabricated concrete. Impacts in the supply of these pre-fabricated items can have enormous impacts on the critical path of a construction project, and any impact must be analyzed individually based upon the type of item that has been delayed and where it fits in the critical path. Should there be a means of diverting resources elsewhere and prioritizing other portions of the critical path to save time and money, the contractor should take those means as is deemed prudent. Should a pre-fabricated item or material delay present such an impact that there is no way to alter the construction schedule then that impact must be documented by the contractor and form the basis of a future change order to the contract which will include both increased costs for a replacement item and additional labor, as well as an increase in the time allotted within the contract to complete the Project.

   With regard to design professionals who have contractual responsibility to approve submittals of materials and products, COVID-19 related shortages also present a challenge. Design professionals may be confronted with unavailability of specified materials and proposed substituted materials by contractors that the design professional is either not familiar with or falls below the design intent. In these situations, the design professional may face a choice between accepting lesser quality materials or having potential Project delay attributed to his failure to approve submittals. In these instances, it is essential to inform the Owner of the ramification of the decisions being faced and document the file as to these communications.

     Finally, because of these unique conditions and potential impacts associated with COVID-19, design may wish to insert Force Majeure provisions in their future contracts that preclude liability for external events that interfere with the design professionals ability to perform his duties in accordance with the contract or ordinary standard of care.

    We at Shendell & Pollock have handled numerous bodily injury and wrongful death cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at gary@shendellpollock.com or William Convey at william@shendellpollock.com.

When the lower tribunal errs as a matter of law in its determination that it has subject matter jurisdiction, the proper remedy is to invoke the original jurisdiction of the appellate court to assess the same, and perhaps restrain the trial judge from exceeding his or her authority. For example, it is well settled that certain claims arising out of Bankruptcy Court and Copyright litigation are “core” functions of the Federal Courts, which have exclusive jurisdiction over such actions, to the exclusion of state courts. It is appropriate to move to dismiss for lack of subject matter jurisdiction. Another example might be the trial court attempting to proceed in equity in a probate litigation, where the pleadings assert only legal causes of action, seeking only monetary damages. In the unequivocal absence of such subject matter jurisdiction, a trial court’s improper exercise of jurisdiction over the parties and the action constitutes irreparable harm to litigants when the trial court attempts to exercise power which it does not possess.

The appellate remedy is the timely filing of the Petition For Writ Of Prohibition in the appropriate appellate court. “Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Scott v. Hinkle, 259 So. 3d 982, 984 (Fla. 1st DCA 2018), citing Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla. 1992). Subject matter jurisdiction is the “[p]ower of a particular court to hear the type of case that is then before it” or “jurisdiction over the nature of the cause of action and relief sought.” Fla. Star v. B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (quoting Black’s Law Dictionary 767 (5th ed. 1979)). It “means no more than the power lawfully existing to hear and determine a cause.” Malone v. Meres, 91 Fla. 709, 109 So. 677, 684 (1926). Although a writ of prohibition is meant to be employed “with great caution and utilized only in emergencies,” English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977), it “may be granted when a trial court acts outside of its jurisdiction. For example, prohibition is appropriate when another court or administrative body has jurisdiction over the subject matter.” Scott v. Francati, 214 So. 3d 742, 749 (Fla. 1st DCA 2017), review denied sub nom. Francati v. Scott, No. SC17-730, 2017 WL 2991836 (Fla. July 14, 2017). See also Roberts v. Brown, 43 So. 3d 673 (Fla. 2010) (granting prohibition in a matter in which the Florida Supreme Court possessed exclusive jurisdiction); Dep’t of Agric. & Consumer Servs. v. Bonanno, 568 So. 2d 24, 29 (Fla. 1990) (granting prohibition to keep the circuit court from exercising jurisdiction over citrus canker cases within the exclusive jurisdiction of the Department of Agriculture and Consumer Services).

The defense of lack of subject matter jurisdiction cannot be waived, nor can jurisdiction of the trial court be conferred by waiver, agreement or acquiescence. Indeed, lack of subject matter jurisdiction may be asserted for the first time on appeal. And, the Petition For Writ of Prohibition must be filed before the trial court acts, as it cannot be used to undo or unwind court orders, improvidently granted. A Petition seeking prohibition is the proper vehicle and should issue in the circumstance, where there are no disputed issues of fact and the trial court is poised to proceed without subject matter jurisdiction. Am. Mar. Officers Union v. Merriken, 981 So. 2d 544 (Fla. 4th DCA 2008). Prohibition lies to prevent a tribunal from acting without jurisdiction or in excess of its jurisdiction. So, we recommend that you always analyze subject matter jurisdiction, and when appropriate, write the Petition for Writ Of Prohibition to right the ship.

We at Shendell & Pollock have handled numerous trial court and appellate court cases throughout Florida, New York and New Jersey, with over 30 years of experience. If you would like to discuss this alert or any concerns regarding defense of legal malpractice claims, contact Gary R. Shendell at gary@shendellpollock.com .