The new mandate may predictably lead to more crowded calendars.
On this New Year’s Eve, that familiar refrain – “Should old acquaintance be forgot, and never brought to mind?” - might evoke nostalgic thoughts of a departing old friend known as Rule 1.440(a) – the “at issue rule.”
At the stroke of midnight and by the time the last verse of “Auld Lang Syne” has been sung, the newly revised Rules of Civil Procedure will have gone into effect. Among all the changes, the elimination of the “at issue rule” will have profound implications for our bench and Bar.
The gatekeeping function of the “at issue rule” has been to prevent cases from being scheduled for trial prematurely, before the pleadings have closed and the issues have been crystalized. By eliminating the “at issue rule” and overhauling Rule 1.200 (Case Management), the state Supreme Court is mandating most cases be set for trial early, at the outset of litigation.
In fact, new Rule 1.200 requires a trial date and other pre-trial deadlines be ordered within 120 days of the complaint being filed or within 30 days of service on the last defendant, whichever occurs first.
For the typical case, that means a 30-day trial-set clock will likely begin to tick when service of process occurs, long before a defense lawyer is assigned, and well before the court knows anything about the particular needs of the litigation.
In order to be rule compliant, judges will have to actively monitor new case filings, and quickly issue sua sponte orders that unilaterally establish critical dates and deadlines.
This early case management order will have to be entered without lawyer input, and without the judge being informed on questions like, “When can you be available for trial? How many days do you need for trial? How much time do you need before disclosing expert witness opinions? When will this case be ready for mediation?”
The new rules represent a transition away from a system where informed lawyers (who being intimately familiar with their clients, their cases and their budgets) drive the litigation to one where judges impose a “one size fits all” schedule.
There is a judicial consensus and desire to preserve lawyer participation in the management of their cases. Our new approach will generally involve early generation of a sua sponte case management order that designates a projected trial date and other projected pretrial deadlines.
This preliminary order will further require counsel to confer and attempt to agree on a final trial setting and case management schedule (in many cases, counsel may agree to adopt the court’s projected dates).
A later case management conference will likely be scheduled for most cases. In-person attendance at the CMC will be mandatory, except for a provision whereby lawyers will be excused from appearance simply by providing a joint trial-set memorandum to the judicial assistant (as is currently done).
This combination of an early projected trial order followed by the later submission of jointly proposed final dates and deadlines is the optimistic remedy that achieves new rule compliance and preserves the familiar lawyer driven trial-set practice.
With admitted provincial tendencies, much of the consternation among judges has been about achieving new rule compliance while simultaneously wanting to preserve “our way” of doing things in the 4th Circuit. Nobody within the courthouse wants to depart from what has been proven effective and worked locally for generations of lawyers and judges.
Whereas in other parts of the state, trial uncertainty and “rolling dockets” are the norm, our local methodology, with rare exception, has afforded lawyers assurance that their trial will proceed when scheduled.
As former practitioners, every one of our local civil judges intuitively knows that lawyers value certainty and that reliability of trial dates is what sets the priorities of daily practice and most often drives cases toward resolution.
Conversely, when trial dates become a moving target, scheduling witnesses, allocating costs and advising clients turns into an expensive game of “blind man’s bluff.” The key to making this “no trial left behind” philosophy work is a long-standing willingness and commitment by the civil judges to preside over each other’s cases when needed.
At any given time, a civil judge overloaded with trials can almost always rely on help from his or her colleagues. This internal compact has allowed us to navigate bottlenecks and assure each lawyer that a courtroom and judge will be available to try their case.
The new rule mandate requiring more cases be set for trial will predictably lead to increasingly crowded trial calendars and negatively impact the judges’ availability to cover each other’s trials.
Should that occur, the effect would be increased numbers of “bumped trials” and for the first time in our collective memory, “rolling dockets” in the 4th Circuit. We’ll continue to make every effort to avoid this.
It has long been said, “Nothing is permanent, except change.” Now more than ever, that adage seems particularly applicable to the practice of law.
One thing though remains refreshingly unchanged … the unique privilege and culture we share practicing (and judging) in the 4th Circuit.
Michael Sharrit was elected in 2020 for a term that ends in January 2027.