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Private Judging

The lawyers at Gibson Valenti & Ashley offer a full range of litigation services. Robert A. Young of the firm offers arbitration and voluntary trial resolution services.

These days, litigation can take place in many forms and forums. Because many litigants believe that traditional court-based litigation takes too long, costs too much, and never ends, alternate dispute resolution is rapidly gaining popularity. Preferred because of its lower costs and speedier final outcomes, some form of arbitration is included in many of today's business contracts.

In addition to serving as an arbitrator in a variety of cases, Bob employs his experience as a trial judge to provide VOLUNTARY TRIAL RESOLUTION to parties who want a convenient and private decision. Authorized by Fla. Stat. 44.104, voluntary trial resolution offers several unique advantages:

Trials held at the parties' convenience. The parties agree on the times and places of the trial sessions. The case may be tried piecemeal with portions of the trial conducted in various places within and, if necessary, outside of Florida.

Private trials authorized. There is nothing in Florida law requiring alternative dispute resolution between private parties to be open to the public. Both documents and testimony are the private property of the litigants. Of course, if the final decision is enforced pursuant to Florida law, subsequent proceedings, including appeals, are public records.

Jury trials possible. There is nothing in the statute that prevents the parties from agreeing to be bound by the factual decisions of a panel of six (or more or less) persons chosen by the parties according to their agreement. Typically, if the parties choose to use jurors, they compensate them.

Most legal decisions appealable. One common complaint about arbitration is that there is no appellate review of the correctness of the arbitrator's decisions - generally speaking, only jurisdictions, compliance with the process and arbitrator misconduct are reviewable in circuit court. [44.104(10)]. On the other hand, 44.104(11) governing voluntary trial resolution, provides:

"Any party may enforce a final decision rendered in a voluntary trial by filing a petition for final judgment in the circuit court in the circuit in which the voluntary trial took place. Upon entry of a final judgment by the circuit court, any party may appeal to the appropriate appellate court. Factual findings determined in the voluntary trial are not appealable."

Like traditional state-court trials, factual issues are not generally reviewable and the harmless error rule applies [ 44.104(12)]. Unlike classic arbitration, the appeal of a final voluntary trial resolution decision is to the District Court of Appeal and the scope of review is much greater, including the correct application of the law to the facts [See, 44.104(10)].

Trials commenced any time. Voluntary trial resolution may occur before a lawsuit is filed or any time after it has progressed. The circuit court, upon the "application" of the petition of the parties to a dispute shall appoint a voluntary trial resolution judge [ 44.104(2), (4)] A civil filing fee is required, but there is no requirement that the application filed with the court contain the allegations and defenses to be tried before the voluntary trial resolution judge [44.104(5)].

Most civil cases eligible. The statue excludes cases in which a "constitutional issue is involved" [ 44.104(1)]; disputes involving child custody, visitation or child support; and any dispute which involves the rights of a potential third party who is not included in the lawsuit. [44.104(14)].

Popular in other states. While voluntary trial resolution is still on the cutting edge in Florida, its use is widespread in California and some other states. It has been the subject of several analyses. For instance, the National Legal Center for the Public Interest concluded in its 1997 study, "Private Judging: Privatizing Civil Justice," that private judging "represents a potentially significant alternative to the public adversarial system."