author: PER CURIAM.

text:
    In re AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—SUBCHAPTERS 6-25 AND 6-26.
    No. SC06-1269.
    Supreme Court of Florida.
    July 6, 2006.
    John F. Harkness, Jr., Executive Director, Alan B. Bookman, President, Henry M. Coxe, III, President-elect, and Paul F. Hill, General Counsel, The Florida Bar, Tallahassee, FL, for Petitioner.
    Pamela D. Cichon, Chair, Government Lawyer Section (2005-2006), Senior Assistant City Attorney, St. Petersburg, FL, and Keith W. Rizzardi, Past-Chair, Government Lawyer Section (2003-2004), Trial Attorney, U.S. Department of Justice, Washington, D.C., for Proponents.
    William Sumner Scott, J.D., Executive Director, Judicial Equality Foundation, Inc., Miami, FL, for Opponent.
   PER CURIAM.

The Florida Bar petitions this Court to consider proposed amendments to the Rules Regulating the Florida Bar. We have jurisdiction. See Art. V, § 15, Fla. Const.

The Florida Bar submitted several proposals to the Board of Governors of The Florida Bar for its recommendation. The Board approved the proposals. The proposals were published for comment in the March 15, 2006, edition of The Florida Bar News. In that publication, the Bar instructed interested parties to file any comments directly with the Court. Thereafter, on April 26, 2006, the Bar filed the proposals with the Court. See In re Amendments to the Rules Regulating the Florida Bar, No. SC06-736 (Fla. petition filed Apr. 26, 2006).

Only two comments were filed with the Court. After the comment period elapsed, the Bar filed a motion on June 6, 2006, asking the Court to consider two of the proposals, which would create two new board certification areas, in advance and separate from the other proposals submitted in the petition. The Court grants the Bar’s motion to consider the two board certification proposals separate from the other proposals.

The first proposal would create a certification area related to state and federal government and administrative practice. This certification area would be identified in the Rules Regulating the Florida Bar as subchapter 6-25. The second proposal would create a new certification area for intellectual property law, identified in the rules as subchapter 6-26. No comments were filed opposing these proposals. In fact, the comment of the Government Lawyer Section of The Florida Bar strongly supports the proposal for creating sub-chapter 6-25, regarding standards for certification of a board certified state and federal government and administrative practice lawyer. After considering the two proposals and the comment, the Court adopts the Bar’s two proposals.

Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. The new language is indicated by underscoring. The amendments shall become effective on August 1, 2006, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

6-25. STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED STATE AND FEDERAL GOVERNMENT AND ADMINISTRATIVE PRACTICE LAWYER

6-25.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed below maybe issued an appropriate certificate identifying the lawyer as a “Board Certified State and Federal Government and Administrative Practice Lawyer.” The purpose of the standards is to identify those lawyers who practice law before or on behalf of state and federal government entities and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism to be properly identified to the public as certified state and federal government and administrative practice lawyers.

6-25.2 DEFINITIONS

(a)State and Federal Government and Administrative Practice. “State and federal government and administrative practice” is the practice of law on behalf of public or private clients on matters including but not limited to rulemaking or adjudication associated with state or federal government entity actions such as contracts, licenses, orders, permits, policies, or rules. State and federal government and administrative practice also includes appearing before or presiding as an administrative law judge, arbitrator, hearing officer, or member of an administrative tribunal or panel over a dispute involving an administrative or government action.

(b) Government Entity. “Government entity” means any state agency, political subdivision, special district, or instrumentality of the state of Florida, and any federal agency, bureau, corporation, instrumentality or other government body of the United States, including the United States armed forces. This definition should be broadly construed.

(c) Lead Advocate. “Lead advocate” means serving as the primary attorney, whether as a team leader or alone, working on behalf of either a private party or a government entity. Service as a supervisor and signatory of legal documents, but without substantial participation in the preparation of those documents, does not constitute service as a lead advocate. Service in the role of lead advocate also includes presiding as an administrative law .judge, arbitrator, hearing officer, or member of an administrative tribunal or panel over a dispute involving an administrative or government action.

(d) Practice of Law. The “practice of law” is defined as set forth in rule 6-3.5(c)(1).

(e) State and Federal Government and Administrative Practice Certification Committee. The state and federal government and administrative practice certification committee shall include at least 2 attorneys employed by government entities in Florida, at least 1 attorney employed by a federal government entity, and at least 3 attorneys in private practice. While all committee members should have experience in rulemaking and adjudication, the committee should also include at least 2 attorneys whose state and federal government and administrative practice is primarily non-litigation.

6-25.3 MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant must have been engaged in a state or federal government and administrative practice for at least 5 years preceding the date of application. The years of law practice need not be consecutive.

(b) Practice Requirements. The practice requirements shall be as follows:

(1) Substantial Involvement. The applicant must demonstrate substantial involvement in a state and federal government and administrative practice during 3 of the last 5 years immediately preceding application. Any applicant who meets the practical experience requirements in subdivisions 6-25.3(b)(2)(A)-(I) below is presumed to meet this requirement.

(2) Practical Experience. The applicant must demonstrate broad substantial practical experience in state or federal government and administrative practice by providing examples of service as the lead advocate on behalf of a private client or a government entity or instrumentality. Using the point values and limitations assigned below, the applicant’s experience examples from the following actions must total at least 100 points and have been performed within 20 years preceding the filing of the application:

(A) administrative hearings, involving disputed issues of material fact [Section 120.57(1), Florida Statutes] and adjudicated through final order pursuant to the Florida Administrative Procedure Act, Chapter 120, Florida Statutes (5 points each);

(B) fully-adjudicated administrative actions or rulemaking proceedings pursuant to the Federal Administrative Procedure Act, 5 U.S.C. §§ 551-559, and other federal APA proceedings, including record review proceedings, pursuant to 5 U.S.C. §§ 701-706 (5 points each);

(C) any other fully-adjudicated state or federal administrative or civil proceeding before an administrative forum, hearing officer, magistrate, arbitrator, state or federal district, circuit or supreme court, or other forum, in which the applicant represents a party in a lawsuit brought by or against a government entity. Applicants are encouraged to identify cases involving state or federal constitutional or statutory matters, state or federal regulations, ethics, open government, public records, or sovereign immunity. Experience working on matters exclusively involving city, county, and local government law (such as code enforcement, municipal financing and licensing, local referen-da, ordinances, and zoning) does not constitute practical experience for purposes of obtaining state and federal government and administrative practice certification (5 points each);

(D) rulemaking_proceedings through rule adoption pursuant to the Florida Administrative Procedure Act, Chapter 120, Florida Statutes (3 points each);

(E) state or federal government or administrative actions as follows:

1. involvement in actions that are considered, pursuant to the Florida Administrative Procedure Act or the Federal Administrative Procedure Act, to provide a point of entry or otherwise create an opportunity for a person to seek to adjudicate legal rights in state or federal courts, or in an administrative forum. Examples may include, but are not limited to, policies, orders, emergency orders, permits, licenses, contracts, or other agency decisions, or intended decisions of state and federal government entities. Examples may not include documents requiring; merely clerical completion (2 points each);

2. involvement as lead advocate in an administrative proceeding of the type identified herein, in which a written settlement agreement was negotiated and upon which the proceeding was terminated (2 points each);

3. involvement as lead advocate in an administrative proceeding of the type identified herein, in which a proposed administrative or government action or the challenge to the action was formally withdrawn (2 points each);

(F) other actions on behalf of state or federal government agen-dos, including military adjudicatory or i clemaking proceedings, that are the substantial equivalent of the practical experience categories identified herein, as determined at the sole discretion of the state and federal government and adminisfarative practice certification committee after review of the application (1 to 4 points each);

(G) an advisory opinion issued by the Florida Commission on Ethics, Florida or United States Attorney General, or Supreme Court of Florida (1 point each);

(H) experience as legislative staff on a bill passed by the Florida Legislature and enacted into law within Chapters 119 (Public Records), 120 (Administrative Procedure Act), 286 (Open Meetings), or 287 (Procurement), Florida Statutes, or as staff for the Florida Legislature’s Joint Administrative Procedures Committee on completed rulemaking initiatives (1 point each); or

(I)experience as .judicial staff, or staff to an administrative law judge, arbitrator, hearing officer, or other administrative panel on fully-adjudicated cases consistent with this rule (1 point each).

The applicant may have a maximum of 40 points from examples within (F) through (I). If the applicant has no points within (A), (B), or (C), the applicant must have points from a minimum of 2 different categories within (D) through (I). The state and federal government and administrative practice certification committee may increase the number of points granted for activities of the type identified in subdivisions (b)(2)(A), (B), or (C), above, for good cause shown, such as an applicant’s involvement as lead advocate in an administrative hearing that lasted more than 6 days.

(c) Peer Review. The applicant shall submit the names and addresses of 5 individuals, at least 4 of whom are attorneys and 1 of whom is a federal, state, or administrative law .judge before whom the applicant has appeared within the 5 years immediately preceding application. Individuals who currently practice in the applicant’s law firm or government entity may not be used as references. In lieu of a judicial reference, the applicant may provide the name and address of the head of a government entity (or a member of a collegial board that serves as the head of a government entity) if the applicant has advised or appeared before the person within the 5 years immediately preceding application. Administrative law judges or hearing officers applying for certification may offer the reference of an attorney who has appeared before them more than once, or, if appropriate, the reference of the chief administrative law judge or hearing officer. In all cases, at least 2 of the attorney references must be members of The Florida Bar. Individuals serving as references shall be sufficiently familiar with the applicant to attest to the applicant’s special competence and substantial involvement in the field of state and federal government and administrative practice, as well as the applicant’s character, ethics, and reputation for professionalism in the practice of law. The board of legal specialization and education and the state and federal government and administrative practice certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to determine the applicant’s qualifications for certification pursuant to this rule and rule 6-3.5(c)(6).

(d)Education. The applicant must demonstrate that during the 3-year period immediately preceding the date of application, the applicant has met the continuing legal education requirements in state and federal government and administrative practice. The required number of hours shall be established by the board of legal specialization and education and shall in no event be less than 50 hours for the 3 years immediately preceding the application for certification. Credit for attendance or speaking appearances at continuing legal education seminars shall be given only for programs that are directly related to state and federal government and administrative practice. In addition, the state and federal government and administrative practice certification committee may conclude that the education requirement is satisfied, in part, by 1 or more of the following:

(1) lecturing at continuing legal education seminars;

(2) authoring or editing articles or books published in professional periodicals or other professional publications;

(3) teaching courses directly related to state and federal government and administrative practice at an approved law school or other graduate level program presented by a recognized professional education association;

(4) completing such home study programs as may be approved by the board of legal specialization and education or the state and federal government and administrative practice certification committee, subject to the limitation that no more than 50 percent of the required number of hours of education may be satisfied through home study programs; or

(5) such other methods as may be approved by the board of legal specialization and education and the state and federal government and administrative practice certification committee.

The board of legal specialization and education or the state and federal government and administrative practice certification committee shall establish policies applicable to this rule including but not limited to the method of establishment of the number of hours allocable to any of the above-listed subdivisions. Such policies shall provide the hours that shall be allocable to each separate but substantially different lecture, article, or other activity described in subdivisions (1), (2), (3), and (4) above.

(e) Examination. The applicant must pass an examination applied uniformly to all applicants to demonstrate sufficient knowledge, proficiency, and experience in state and federal government and administrative practice to justify .the representation of special competence to the legal profession and the public.

(f) Exemption. An applicant who has been substantially involved in state and federal government and administrative practice for a minimum of 20 years and who otherwise fulfills the standards set forth in rules 6-3.5(d) and 6-25.3(a)-(d), shall be exempt from the examination. This exemption is only applicable to those applicants who apply within the first 2 application filing periods from the effective date of these standards and who meet all other requirements for certification.

6-25.4 RECERTIFICATION

Recertification shall be pursuant to the following standards:

(a) Substantial Involvement. A satisfactory showing, as determined by the board of legal specialization and education and the state and federal government and administrative practice certification committee, of continuous and substantial involvement in state and federal government and administrative practice throughout the period since the last date of certification or recertification. Any applicant who meets the practical experience and education requirements in paragraphs (b) and (c) below is presumed to meet this requirement.

(b) Practical Experience Requirement. An applicant seeking recertification must demonstrate involvement as the lead advocate on behalf of a private client or a government entity in state and federal government and administrative practice since certification or the last recertification, totaling at least 10 points as described in rule 6-25.3(b)(2)(A)-(I). For good cause shown, subject to approval by the board of legal specialization and education and the state and federal government and administrative practice certification committee, the 10-point requirement above may be waived for applicants who possess other extraordinary legal experience related to state and federal government and administrative practice. Examples of extraordinary experience may include: service as an administrative law judge; agency general counsel or other senior government attorney with supervisory responsibilities; representation of or membership on a committee working on substantial matters of state and federal government and administrative practice; and other appropriate legal experience described by the applicant.

(c) Education. The applicant must demonstrate completion of at least 90 hours of continuing legal education since the last application for certification or re-certification. The continuing legal education hours must logically be expected to enhance the proficiency of attorneys who are board certified in state and federal government and administrative practice. If the applicant has not attained 90 hours of continuing legal education but has attained more than 60 hours during such period, successful passage of the examination given to new applicants shall satisfy the continuing legal education requirements. However, an applicant seeking re-certification may also reduce the educational requirements in this subsection to 60 hours by demonstrating involvement as the lead advocate on behalf of a private client or a government entity in state and federal government and administrative practice since certification or the last re-certification, totaling at least 25 points as described in rule 6-25.3(b)(2)(A)-(I).

(d) Peer Review. The applicant shall submit the names and addresses of 3 individuals, at least 2 of whom are attorneys and 1 of whom is a federal, state, or administrative law judge before whom the applicant has appeared within the past 5 years preceding the application. Individuals who currently practice in the applicant’s law firm or government entity may not be used as references. In lieu of a judicial reference, the applicant may provide the name and address of the head of a government entity (or a member of a collegial board that serves as the head of a government entity) if the applicant has advised or appeared before the person within the 5 years preceding the application. At least 1 attorney reference must be a member of The Florida Bar. Individuals serving as references shall be sufficiently familiar with the applicant to attest to the applicant’s special competence and substantial involvement in the field of state and federal government and administrative practice, as well as the applicant’s character, ethics, and reputation for professionalism in the practice of law. The board of legal specialization and education and the state and federal government and administrative practice certification committee may authorize references from persons other than attorneys and may also make such additional inquiries as they deem appropriate to determine the applicant’s qualifications for certification pursuant to this rule and rule 6-3.5(c)(6).

(e) Waiver of Compliance. Any applicant for recertification who at the time of application is serving and has served full time for 3 or more years as an administrative law judge, arbitrator, hearing officer, or member of an administrative tribunal or panel is deemed to meet the recertification criteria.

6-25.5 MANNER OF LISTING AREA OF CERTIFICATION

A member having received a certificate in state and federal government and administrative practice may list the area in the manner set forth under rule 6-3.9(a) or the listing may be abridged to indicate that the member is board certified in (1) state and federal government practice; or, (2) state and federal administrative practice. A member who is certified pursuant to rule 6-25.3(f) and elects to have his or her listing limited to certification in state and federal administrative practice shall have been certified with a minimum of 25 total points from examples in rule 6-25.3(b)(2)(A), (B), and (D).

6-26. STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED INTELLECTUAL PROPERTY LAWYER

6-26.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a “Board Certified Intellectual Property Lawyer.” The purpose of the standards is to identify those lawyers who practice intellectual property law and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism, to be properly identified to the public as certified intellectual property lawyers.

6-26.2 DEFINITIONS

(a). Patent Application Prosecution. “Patent application prosecution” covers the practice of law dealing with patent rights, and covers all aspects of the U.S. Patent Statutes, 35 U.S.C. §§ 1-376, as amended; the Rules of Practice in Patent Cases, 37 C.F.R. §§ 1.1 — 1.997, as amended; the American Inventors Protection Act of 1999, United States Patent and Trademark Office (USPTO) rules of practice, the Manual of Patent Examining Procedure (MPEP), the Patent Cooperation Treaty (as modified by any later court decisions or Official Gazette notices); the Assignment, Recording and Rights of Assignee, 37 C.F.R. §§ 3.1 — 3.85, as amended; the Secrecy of Certain Inventions and Licenses to Export and File Application in Foreign Countries, 37 C.F.R. §§ 5.1 — 5.33, as amended; the Register of Government Interests in Patents, 37 C.F.R. § 3.58, as amended; and Representations of Others before the USPTO, 37 C.F.R. §§ 10.1— 10.170, as amended, as well as representing clients in proceedings before the USP-TO.

(1) A “patent” is a governmental grant derived from the United States Constitution to encourage innovation and a form of protected personal property under federal statute set forth in title 35 of the United States Code that guarantees the holder of a U.S. patent a right to exclude others from making, using, offering to sell, selling, or importing an invention for a statutory period of years.

(2) “Patent matters” consist of the areas of knowledge required of attorneys registered to practice before the USP-TO, including: rules, practice, and procedure; understanding how to draft claims and the ability to properly draft claims; knowledge about preparation and prosecution of patent applications based on education in and practical experience in engineering or science; understanding the application of patent laws to that endeavor; preparation of patentability opinions; filing and prosecuting patent applications, interferences, and re-issuances; preparing opinions concerning the validity and/or infringement of patents; prosecuting patent applications at the USPTO and in foreign .jurisdictions; and the re-examination of patents.

(b) Patent Infringement Litigation. “Patent infringement litigation” covers the practice of law (including substantive law, evidence, and procedure) dealing with the litigation of patents in federal district courts and appeals to the federal circuit of the United States of America, and includes: Service of Process, 37 C.F.R. §§ 15.1 — 15.3; and Testimony of Employees and the Production of Documents in Legal Proceedings, 37 C.F.R. §§ 15.11— 15.18. Infringement of a patent is a tort giving rise to a federal cause of action for a form of trespass. The grant of a patent by the USPTO carries with it the presumption of validity, including compliance with federal statutes. Invalidity is a defense to a claim for patent infringement and may be based on a number of factors, including: anticipation; obviousness; derivation; failure to disclose “best mode”; estoppel and laches; ineligible subject matter; lack of utility or operability; lack of enabling disclosure; claim indefiniteness; double patenting; inequitable conduct; violation of antitrust law; and non-infringement.

(1) “Contested matters” shall be defined as hearings before a tribunal or court that are adversarial, evidentiary, and binding in which the applicant has had a senior-level responsibility, and in which the applicant evaluated, handled, and resolved issues of fact and law in a dispute that involved a patent, either by reaching an adjudicated decision or by achieving a settlement before final adjudication or appeal.

(2) An “adjudicated decision” shall mean a decision resulting from a proceeding in which: a tribunal rendered a decision on a motion for preliminary injunction following an evidentiary hearing involving live testimony; a tribunal rendered a decision on a motion for summary judgment; a tribunal rendered a decision on significant issues of patent law following briefing (e.g., a Markman hearing, a Daubert hearing, etc.); or a tribunal or jury rendered a decision following a trial, or the federal circuit court of appeals rendered a decision following an appeal. A single proceeding may generate multiple adjudicated decisions and an applicant shall receive credit for each such qualifying adjudicated decision as a separate contested matter; however, for purposes of certification, the number of adjudicated decisions from any single case shall be limited to 2.

(c) Trademark Law. “Trademark law” covers the practice of law dealing with all aspects of the Trademark Act of 1946 (the “Lanham Act”), as amended, 15 U.S.C. §§ 1051-1127, Trademark Counterfeiting Act of 1984, as amended, 18 U.S.C. § 2320, Tariff Act of 1930, as amended, 19 U.S.C. §§ 1837 and 1526, Chapter 495 of the Florida Statutes, as amended (the “Florida Trademark Law”), and common law principles, including: advising clients as to ownership, registration, transfer, validity, dilution, enforceability, and infringement of trademarks in the- state of Florida, the United States and internationally; representing clients in proceedings before the USPTO and the Florida Department of State; and representing clients in proceedings in federal or state courts, or in arbitration, relating to the ownership, registration, licensing, transfer, validity, dilution, enforcement, and infringement of trademarks.

(1) A “trademark” is defined to include trademarks, service marks, certification marks, and collective marks. Each of these forms of marks shall have the meaning given in the Florida Trademark Law, Fla. Stat. § 495.011(l)-(4). A “trademark” is further defined to include trade dress as that term is used in the Restatement Third, Unfair Competition, Section 16, and domain names as that term is used in the Lanham Act, 15 U.S.C. § 1125(d).

(2) “Contested matters” shall be defined as hearings before a tribunal or court that are adversarial, evidentiary, and binding in which the applicant has had senior-level responsibility, and in which the applicant evaluated, handled, and resolved substantial issues of fact and law in a dispute that involved a trademark, either by reaching; an adjudicated decision, or by achieving a settlement before final adjudication or appeal.

(3) An “adjudicated decision” shall mean a decision resulting from a proceeding in which: a tribunal rendered a decision on a motion for temporary or preliminary injunction following an evi-dentiary hearing involving live testimony; a tribunal rendered a decision on a motion for summary .judgment; a tribunal rendered a decision on significant issues of trademark law following briefing in the USPTO; or a tribunal or jury rendered a decision following a trial. A single proceeding may generate multiple adjudicated decisions and an applicant shall receive credit for each such qualifying adjudicated decision as a separate contested matter; however, for purposes of certification, the number of adjudicated decisions from any single case shall be limited to 2.

(4) “Substantive refusal” shall be defined as refusals of trademark applications during ex parte USPTO prosecution under Section 2 of the Lanham Act, 15 U.S.C. § 1052.

(d) Copyright Law. “Copyright law” covers the practice of law dealing with the protection of the works of the human intellect (literature, music, art, computer programs, etc.) under the copyright laws of the United States, including: subject matter; ownership; duration; registration; formalities; exclusive rights; transfers and licensing, including the rights and obligations of parties, appropriate terms and conditions in licensing contracts, antitrust and misuse constraints, international licensing considerations; contested matters relating to claims of infringement of copyrights and to disputes regarding the authorship, ownership, licensing, and transfer of copyrighted works, including infringement actions and defenses, remedies, jurisdiction and venue, jury considerations, federal preemption of state law; the Copyright Acts of 1909 and 1976, as amended; recent amendments to copyright law such as the Digital Millennium Copyright Act; and international aspects of copyright, including the Berne convention and other treaties on copyright and related subjects. The primary federal copyright law is contained in Title 17 of the United States Code. Generally, the practices that the copyright law is concerned with involve, but are not limited to, registration, licensing, transfer, and protection of copyrighted works.

(1) “Contested matters” shall be defined as hearings before a tribunal or court that were adversarial, evidentiary, and binding in which the applicant had a senior-level responsibility, and in which the applicant evaluated, handled, and resolved substantial issues of fact and law in a dispute that involved a copyright, either by reaching an adjudicated decision, or by achieving a settlement before final adjudication or appeal.

(2) An “adjudicated decision” shall mean a decision resulting from a proceeding in which: a tribunal rendered a decision on a motion for temporary or preliminary injunction following an evi-dentiary hearing involving live testimony; a tribunal rendered a decision on a motion for summary judgment; or a tribunal or jury rendered a decision following a trial. A single proceeding may generate multiple adjudicated decisions and an applicant shall receive credit for each such qualifying adjudicated decision as a separate contested matter, however, for purposes of certification, the number of adjudicated decisions from any single case shall be limited to 2.

(e) Practice of Law. The “practice of law” shall be defined as set forth in rule 6-3.5(c)(1) and rule 6-26.3(a).

(f) Intellectual Property Law Certification Committee. The intellectual property law certification committee shall consist of 9 members, including a minimum of. 3 registered patent attorneys with experience in patent application prosecution, 2 members with experience in patent infringement litigation, 2 members with experience in trademark law, and 2 members with experience in copyright law.

6-26.3 MINIMUM STANDARDS

(a) Minimum Period of Practice. The applicant shall have been engaged in the practice of law for at least 5 years immediately preceding the date of application. Notwithstanding the definition of “practice of law” in rule 6-3.5(c)(l), practicing “patent application prosecution,” as defined in section 6-26.2(a), before the USPTO as a registered patent attorney or registered patent agent shall be deemed to constitute the practice of law for purposes of the 5-year practice requirement.

(b) Substantial Involvement. Substantial involvement means at least 30 percent of the applicant’s practice during the 3 years immediately preceding application has been devoted to matters involving intellectual property law.

(c) Experience. During the 5 years immediately preceding application, the applicant must comply with the experience requirements in at least 1 of the following categories:

(1) Patent Application Prosecution. The applicant must have handled with senior-level responsibility a minimum of 40 patent matters that involved representation of a client. The quality of the applicant’s work and the nature of the issues involved shall be a factor in determining eligibility for certification. Demonstration of compliance with this requirement shall be made initially through a form of questionnaire approved by the intellectual property law certification committee, but written or oral supplementation (including copies of work product) may be required. For good cause shown, for satisfaction in part of the 40 patent matters that involved representation of a client, verified substantial involvement in patent matters at a government agency may be considered. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(2) Patent Infringement Litigation. The applicant must have handled with senior-level responsibility a minimum of 5 contested matters in litigation or on appeal in which there was an adjudicated decision. Additionally, applicants shall have devoted a minimum of 800 hours per year to litigation matters generally, at least 300 hours per year of which shall have been devoted to patent infringement litigation; and applicant shall have, within the last 10 years, tried a patent infringement litigation matter to the close of testimony, verdict, or .judgment. The applicant shall submit work product samples and a transcript (if available) in each such contested matter. For good cause shown, for satisfaction in part of the minimum requirements, verified substantial involvement in patent infringement litigation at a government agency may be considered. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(3) Trademark Law. The applicant must have handled with senior-level responsibility either a minimum of 6 contested matters or 25 responses to substantive refusals, or a combination of the 2. Substantive refusals on which the applicant relies shall not have involved merely technical corrections, insignificant matters, or abandonment. The applicant shall submit work product sam-pies and a transcript (if available) in each such contested matter. In addition, applicant must have engaged in at least 300 hours each year in the practice of law in which the applicant has had substantial senior-level participation in legal matters involving trademark law. Three contested matters involving in the aggregate no less than 50 hours of in-session hearing or trial shall satisfy the requirement of 6 contested matters. For good cause shown, for satisfaction in whole or in part of the requirement of 6 contested matters or 25 responses to substantive refusals, verified substantial involvement in a combination of contested matters and responses to substantive refusals shall be considered. For good cause shown, for satisfaction in part of the minimum requirements, verified substantial involvement in trademark matters at a government agency may be considered in lieu of representation of clients. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(4)Copyright Law. The applicant must have handled with senior-level responsibility a minimum of 40 substantive matters that involved representation of a client, with a minimum of 300 hours per year devoted to such matters. The ministerial preparation of a copyright registration is not considered a substantive matter for purposes of certification. The applicant shall submit work product samples and, if the applicant also relies upon participation in contested matters, the applicant shall submit transcripts (if available) in each such contested matter. For good cause shown, for satisfaction in part of the minimum requirements, verified substantial involvement in copyright matters at a government agency may be considered in lieu of representation of clients. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(d) Peer Review. The applicant shall select and submit the names and addresses of at least 6 lawyers or judges, who neither are relatives nor current associates, partners, or who otherwise practice law in an of-counsel relationship with the applicant, to serve as references. Such references will be contacted and requested to attest to the applicant’s special competence and substantial involvement in intellectual property law, as well as to the applicant’s character, ethics, and reputation for professionalism. Individuals submitted as references shall be substantially involved in intellectual property law and shall be familiar with the applicant’s practice. In addition, other attorneys, judges, employees at government agencies, or other persons likely to be familiar with the applicant may be contacted as deemed necessary by the intellectual property law certification committee and the board of legal specialization and education.

(e) Education. The applicant must demonstrate that during the 3-year period immediately preceding the filing of an application, the applicant has met the continuing legal education requirements necessary for intellectual property law certification. The required number of hours shall be established by the board of legal specialization and education and shall in no event be less than 45 hours. Accreditation of educational hours shall be subject to policies established by the intellectual property law certification committee or the board of legal specialization and education and may be satisfied by participation in 1 or more of the following activities:

(1)attendance at continuing legal education seminars for which intellectual property law certification credit has been approved;

(2) teaching a course in intellectual property law;

(3) participation as a panelist or speaker in a symposium or similar program on intellectual property law;

(4) authorship of a book, chapter, or article on intellectual property law, published in a professional publication or journal;

(5) completing such home study programs as may be approved by the board of legal specialization and education or the intellectual property law certification committee, subject to the limitation that no more than 50 percent of the required number of hours of education may be satisfied through home study programs; and

(6) such other methods as may be approved by the board of legal specialization and education and the intellectual property law certification committee.

(f) Examination. The applicant must pass an examination applied uniformly to all applicants to demonstrate sufficient knowledge, proficiency, and experience in intellectual property law sufficient to justify certification of special competence to the legal profession and the public. The examination will be comprehensive in scope and each applicant will be required to demonstrate at least some knowledge in each specific subject tested. Applicants, however, will be given the opportunity to emphasize special knowledge in 1 or more specific subject areas. An applicant who is a registered patent attorney in good standing with the USPTO shall not be required to take an examination on topics defined in rule 6-26.2(a).

(g) Exemption. An applicant may qualify for an exemption from the examination, or a portion thereof, as follows:

(1) an applicant currently certified by The Florida Bar in civil trial or business litigation shall be exempted from the portion of the examination on the litigation process, but must demonstrate knowledge of substantive law pertaining to intellectual property;

(2) an applicant who has been substantially involved in intellectual property law for a minimum of 20 years, in accordance with the standards set forth in rule 6-3.5(d), and who can demonstrate compliance with the experience requirements under rule 6-26.3(c), subdivisions (1), (2), (3), or (4) within a 10-year time frame, shall be exempt from the examination if all other requirements for certification are met. This exemption shall be applicable only to those applicants who apply within 2 years of the effective date of the approval of this exemption.

6-26.4 RECERTIFICATION

To be eligible for recertification, an applicant must meet the following requirements:

(a) Substantial Involvement. The applicant must show continuous and substantial involvement in matters involving intellectual property law throughout the period since the last date of certification or recer-tification. The demonstration of substantial involvement shall be made by showing that intellectual property law comprises at least 30 percent of the applicant’s practice.

(b) Experience. During the 5 years immediately preceding application, the applicant must comply with the experience requirements in at least 1 of the following categories:

(1) Patent Application Prosecution. The applicant must have handled with senior-level responsibility a minimum of 30 patent matters that involved representation of a client. For good cause shown, for satisfaction in part of the 30 patent matters, the applicant may provide verified substantial involvement in patent matters at a government agency in lieu of representation of clients. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(2) Patent Infringement Litigation. The applicant must have handled with senior-level responsibility a minimum of 5 contested matters in litigation or on appeal in which there was an adjudicated decision. The applicant may substitute completion of an approved, multi-day, intensive advocacy-training course where the applicant performed and was satisfactorily critiqued by recognized experts for 2 of the 5 contested matters. For good cause shown, for satisfaction in part of the 5 contested matters, the applicant may serve as a judge or an arbitrator in a contested matter involving an adjudicated decision concerning a patent, or may serve as an advocacy instructor in an intellectual property law continuing legal education program in lieu of senior-level responsibility as an advocate for a party. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(3) Trademark Law. The applicant must have handled either a minimum of 4 contested matters or 15 responses to substantive refusals of the application. In addition, an applicant must have engaged in at least 300 hours each year in the practice of law in which the applicant had substantial and direct senior-level participation in legal matters involving trademark law. Two contested matters involving in the aggregate no less than 2 days of in-session hearing or trial shall satisfy the requirement of 4 contested matters. For good cause shown, for satisfaction in whole or in part of the requirements, verified substantial involvement in a combination of contested matters and responses to substantive refusals resulting in allowance in satisfaction of the minimum number of matters shall be considered. The applicant may serve as a .judge or an arbitrator in a contested matter involving an adjudicated decision concerning a trademark, or may serve as an advocacy instructor in an intellectual property continuing legal education program, in lieu of senior-level responsibility as an advocate for a party. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(4) Copyright Law. The applicant must have handled with senior-level responsibility a minimum of 30 matters that involved representation of a client. For good cause shown, for satisfaction in whole or in part of the requirement, the applicant may serve as a .judge or an arbitrator in a contested matter involving an adjudicated decision concerning a copyright, or may serve as an advocacy instructor in an intellectual property law continuing legal education program in lieu of senior-level responsibility as an advocate for a party. Verified substantial involvement in other areas of intellectual property law may also be considered to demonstrate overall proficiency.

(d) Peer Review. The applicant must submit the names and addresses of at least 3 lawyers or judges, who neither are relatives nor current associates, partners, or who otherwise practice law in an of-counsel relationship with the applicant, to serve as references. Such references will be contacted and requested to attest to the applicant's special competence and substantial involvement in intellectual property law, as well as to the applicant’s character, ethics, and reputation for professionalism in the practice of law. Individuals submitted as references shall be substantially involved in intellectual property law and shall be familiar with the applicant’s practice. In addition, other attorneys, judges, employees at government agencies, or other persons likely to be familiar with the applicant may be contacted as deemed necessary by the intellectual property law certification committee and the board of legal specialization and education.

(e) Education. The applicant must have completed at least 50 hours of approved continuing legal education in intellectual property law, in accordance with the standards set forth in rule 6-26.3(e) since the filing of the last application for certification.

      . The proposals for new subchapters 6-25 (Standards for Certification of a Board Certified State and Federal Government and Administrative Practice Lawyer) and 6-26 (Standards for Certification of a Board Certified Intellectual Property Lawyer) are hereby severed from the other proposals in In re Amendments to the Rules Regulating the Florida Bar, No. SC06-736. Thus, the instant case is assigned a new case number, SC06-1269. The Court will consider the remaining proposals of SC06-736 at a future time.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    In re REPORT OF THE COMMISSION ON DISTRICT COURT OF APPEAL PERFORMANCE AND ACCOUNTABILITY-RULE OF JUDICIAL ADMINISTRATION 2.035.
    No. SC06-397.
    Supreme Court of Florida.
    July 6, 2006.
    The Honorable Martha C. Warner, Chair, Commission on District Court of Appeal Performance and Accountability, West Palm Beach, FL, Gary Devenow Fox, Chair, Rules of Judicial Administration Committee, Tampa, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Proponents.
   PARIENTE, J.

The Commission on District Court of Appeal Performance and Accountability (Commission) has filed a report recommending amendments to Florida Rule of Judicial Administration 2.035, Determination of Need for Additional Judges, to update the criteria for certification of need for district court of appeal judges. We have jurisdiction. See art. V, § 9, Fla. Const.

In 2004, we amended the caseload threshold for assessing the need for additional district court judges set forth in rule 2.035 from 250 to 350 case filings per judge, noting that the “the caseload threshold for district court judges has not been amended in over twenty years, and the five district courts of appeal are all operating at caseloads significantly in excess of the 250 filings per judge standard currently contained in the rule.” Amendment to the Fla. Rules of Judicial Admin. (Certification of Judges), 888 So.2d 614, 614 (Fla.2004). At that time, we observed that the figure of 350 case filings per judge “more accurately reflects the current filings per judge ratio in the district courts of appeal.” Id. We provisionally adopted the proposed 350 filings per judge caseload threshold, while continuing to study whether the criterion of case filings per judge was the most accurate method for determining whether to certify the need for an additional judge for the district courts of appeal. See id. at 614-15.

By administrative order dated September 22, 2004, the Court directed the Commission to “propose a process and criteria for determining the resource needs and deployment patterns sufficient to address the workload of the district courts of appeal, including a re-examination of whether the 350-filings-per-judge threshold accurately reflects a basis for certifying the need for additional district court of appeal judges.” In re Commission on District Court of Appeal Performance and Accountability, Fla. Admin. Order No. AOSC04-21 (Sept. 22, 2004) (on file with Clerk, Fla. Sup.Ct.); see also In re Certification of Need for Additional Judges, 889 So.2d 734, 742 (Fla.2004) (questioning “whether the 350-filings-per-judge threshold accurately reflects a basis for certifying the need for additional district court of appeal judges”).

In its initial report, the Commission outlined a proposed amendment to rule 2.035 that identified multiple relevant criteria for assessing the need for additional district court judges, including a mechanism for measuring “weighted caseload per judge.” As we explained,

the Commission developed a process for establishing relative case weights. This process measures judicial effort associated with any given caseload. Relative weights were established only for those cases disposed of by a judge “on the merits,” and not cases dismissed by the clerk of court or otherwise administratively disposed of. The Commission first established categories of similar cases and ranked them to identify a mid-ranked case. Then, judges from each district were asked to approximate the relative weight of each case category in relation to the mid-ranked case, identified as an appeal from a criminal judgment and sentence. Relative weights were then assigned to each type of case, ranging from an appeal from a final judgment in a civil case to a criminal appeal in a case disposed of pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). These weights were then applied to each court’s dispositions on the merits to determine the weighted caseload value.

In re Certification of Need for Additional Judges, 918 So.2d 283, 288 (Fla.2005).

The Court reviewed this initial report and agreed that weighted caseload per judge was a more meaningful measure of workload. We noted, however, that the Commission’s report did not identify a threshold point at which the weighted caseload value would be sufficient to warrant a recommendation to certify the need for an additional judge. Accordingly, the Court requested that the Commission review the appropriate data, analyze the workload implications, and provide the Court with a threshold target or range that could be used to guide the certification process.

On January 31, 2006, the Commission submitted a second report which recommended an amendment to rule 2.035 revising the current process and criteria for certification of need for district court of appeal judges and identifying a specific weighted caseload per judge threshold. Upon review of the Commission’s recommendations, we amend rule 2.035 as discussed below.

Subdivision (a), Statement of Purpose, is amended to delete the wording indicating that the rule sets forth criteria to be used in determining the need for increasing, decreasing, or redefining appellate districts and judicial circuits. The rule does not actually set forth criteria for increasing, decreasing, or redefining judicial circuits. Additionally, recently adopted Florida Rule of Judicial Administration 2.036 separately sets forth the criteria for determining the need for increasing, decreasing, or redefining appellate districts. See In re Report of the Comm, on Dist. Court of Appeal Workload and Jurisdiction-Rule of Judicial Admin. 2.036, 921 So.2d 615 (Fla.2006). Subdivision (a) is also amended to refer to the Commission’s report and the opinion of the Court in this case.

Current subdivisions (b)(2)(A) and (B) are replaced with the Commission’s newly proposed criteria and weighted caseload per judge threshold. As we explained in our most recent opinion certifying a need for additional judges:

[TJhe Commission found that many of the criteria in rule 2.035(b)(2) are not accurate measures or reliable predictors of judicial workload. In fact, factors such as population growth and an increase in the number of circuit court judges did not correlate with an increase in appellate workload. In the place of the prior criteria, the Commission formulated new criteria grouped into four categories: workload, efficiency in case disposition, judicial effectiveness in deciding cases and performing administrative duties, and judicial professionalism in enhancing the quality of the courts, the legal profession, and the justice system as a whole.

In re Certification of Need for Additional Judges, 918 So.2d at 288 (footnote omitted).

The Commission also advised against using a strict case filings per judge number to determine the need for additional judges. We agreed that

[t]he weighted caseload is a more accurate representation of judicial workload in that it addresses differences in the amount of judicial time that must be spent on each type of case. Relative case weights are useful in many ways. First, they demonstrate how a court’s judicial workload has increased or decreased over time. Second, they allow a comparative assessment of the distribution of judicial workload between districts. Lastly, they contribute to an analysis of how the use of other nonjudicial resources can affect judicial workload.

Id. at 289. Under the new weighted caseload per judge threshold set forth in rule 2.035(b)(2)(B), “[t]he court will presume that there is a need for additional appellate court judgeships in any district for which a request is made and where the relative weight of the cases disposed on the merits per judge would have exceeded” the threshold of the weighted caseload after the addition of the proposed judge.

We emphasize that, although the threshold of the weighted caseload establishes a presumption for an additional judge, this Court will continue to examine many factors in determining when an additional judge is needed, including the multiple factors listed in amended rule 2.035(b)(2)(A)(i)-(iv). Under the amended process set forth in subdivision (d), Certification Process, after the chief judge of a district court has prepared a report showing the need for a new judge, the report must then be submitted to the District Court of Appeal Budget Commission for review and approval. The report and the Budget Commission’s approval must then be submitted to the Chief Justice. The Chief Justice will submit the recommendations to the Court, which will thereafter certify its findings and recommendations to the Legislature.

Accordingly, we adopt the proposed amendments to Rule of Judicial Administration 2.035 as set forth in Appendix 1 to this opinion. Additions are indicated by underscoring; deletions are indicated by struck-through type. The commentary is offered for explanation only and is not adopted as an official part of the rule. The amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX 1

RULE 2.035. DETERMINATION OF NEED FOR ADDITIONAL JUDGES

(a) Statement of Purpose. The purpose of this rule is to set forth uniform criteria used by the supreme court in determining the need for additional judges, except supreme court justices, and the necessity for decreasing the number of judgesr-and -for-increasing; decreasing-,' - or redefining appellate districts and judicial circuits, pursuant to article V, section 9, Florida Constitution. — The—criteria set forth in-this rule have been identified and used by the supreme cour-t in making-⅛⅛ determination in-recent years. These criteria form the primary basis for our the supreme court's determination of need for additional judges. Unforeseen developments, however, may have an impact upon the judiciary resulting in needs which cannot be foreseen or predicted by statistical projections. This The supreme court, therefore, may also consider any additional information found by it to be relevant to the process. In establishing criteria for the need for additional appellate court judges, substantial reliance has been placed on the findings and recommendations of the Supreme Court Commission on Florida Appellate Court Structure; — See In re Certification, 370 So.2d 365 (Fla.1979) Commission on District Court of Appeal Performance and Accountability. See In re Report of the Comm’n on Dist. Court of Appeal Performance and Accountability — Rule of Judicial Admin. 2.035, No. SC06-397 (Fla. July 6, 2006).

(b) Criteria.

(1) Trial Courts, [no change]

(2)District Courts of Appeal.

(A) The following threshold has been established based -upon caseload statistics supplied to the state courts administrator by the-clerks of the district-courts of-appeal---The court will presume that there is a -need-for an additional-appellate court judgeship in any district-for which a request is-made and where current caseload-filings reflect the need for an additional judgeship based-on a primary- caseload-ef 350 filings per-jud-ge.

(B) -Any other--factor deemed relevant by the court may be utilized in the determination of the-need for one or more addi-tionai-judges, including, but not limited-to? the following factors:

(i) number and- percent of pro se and other-cases impacting extraordinarily-en worldead;

(ii) caseload-tr-ends;

(iii)-use of-assigned or senior judges;

(iv)-number-of law clerksr staff-attorneys and judicial assistants available to support judges;

(v) use of administrative measures to reduce delay-and ■ pending caseload-(⅛% accelerated calendar, frequency of cour-t days, dispute resolution-programs, case management policies, etc-);

(vi) number of-trial judges per appellate-jadge;

(vii) geographic size of appellate district (i.e., number of counties-, number of days-court is — held in — other—counties; travel-time);

(viii) population growth and density within district;

(ix) number of-attorneys-in district;

(x) presence of state and-local government-institutions-in district;

(xi) characteristics of-district (i.e., urban v. rural);

(xii-) new laws-, events, or litigation impacting caseload or administrative workload;

(A) The criteria for determining the need to certify the need for increasing or decreasing the number of judges on a district court of appeal shall include the following factors:

(i) workload factors to be considered include: trends in case filings; trends in changes in case mix; trends in the backlog of cases ready for assignment and disposition; trends in the relative weight of cases disposed on the merits per judge; and changes in statutes, rules of court, and case law that directly or indirectly impact judicial workload.

(ii) efficiency factors to be considered include: a court’s ability to stay current with its caseload, as indicated by measurements such as trend in clearance rate; trends in a court’s percentage of cases disposed within the time standards set forth in the Rules of Judicial Administration and explanation/justification for cases not resolved within the time standards; and a court’s utilization of resources, case management techniques and technologies to maximize the efficient adjudication of cases, research of legal issues, and preparation and distribution of decisions.

(iii) effectiveness factors to be considered include the extent to which each .judge has adequate time to: thoroughly research legal issues, review briefs and memoranda of law, participate in court conferences on pending cases, hear and dispose of motions, and prepare correspondence, orders, judgments and opinions; expedite appropriate cases; prepare written opinions when warranted; develop, clarify, and maintain consistency in the law within that district; review all decisions rendered by the court; perform administrative duties relating to the court; and participate in the administration of the justice system through work in statewide committees.

(iv) professionalism factors to be considered include: the extent to which judges report that they have time to participate, including teaching, in education programs designed to increase the competency and efficiency of the judiciary and justice system as well as the competency of lawyers; provide guidance and instruction for the professional development of court support staff; and participate in appropriate activities of the legal profession at both the state and local levels to improve the relationship between the bench and bar, to enhance lawyer professionalism, and to improve the administration of justice.

(B) The court will presume that there is a need for an additional appellate court judgeship in any district for which a request is made and where the relative weight of cases disposed on the merits per judge would have exceeded 280 after application of the proposed additional judge(s).

(i) The relative weight of cases disposed on the merits shall be determined based upon case disposition statistics supplied to the state courts administrator by the clerks of the district courts of appeal, multiplied- by the relative case weights established pursuant to subdivision (b)(2)(B)(ii), and divided by 100.

(ii) The Commission on District Court of Appeal Performance and Accountability shall review the workload trends of the district courts of appeal and consider adjustments in the relative case weights every four years.

(c) Additional Trial Court Workload Factors. Because summary statistics reflective of the above criteria do not fully measure judicial workload, the supreme court will receive and consider, among other things, information about the time to perform and volume of the following activities, which also comprise the judicial workload of a particular jurisdiction:

(1) review appellate court decisions;

(2) research legal issues;

(3) review briefs and memoranda of law;

(4) participate in court conferences on pending cases;

(5) hear and dispose of motions;

(6) prepare correspondence, orders, judgments, and decisional opinions;

(7) review presentence investigative reports and predispositional reports in delinquency and dependency cases;

(8) review petitions and motions for post-convietion relief;

(9) perform administrative duties relating to the court;

(10) participate in meetings with those involved in the justice system; and

(11) participate in educational programs designed to increase the competency and efficiency of the judiciary.

(d) Certification Process. The process by which certification of the need to increase or decrease the number of judges shall include:

(1) ⅛ — order—to—gather—information about these criteria and-additional workload factors, t The state courts administrator will distribute a compilation of summary statistics and projections to each chief judge at a time designated by the chief justice.

(2) Each chief judge shall submit to the chief justice a request for any increase or decrease in the number of judges:

(A) Trial Courts. Each chief judge will then consider these criteria, additional workload factors, and summary statistics, and submit to the chief justice a request for any increases or decreases under article V, section 9, of the Florida Constitution that the chief judge feels are required.

(B) District Courts. Each chief judge will then consider the criteria of this rule and the summary statistics; if a new judge is requested, the chief judge shall prepare a report showing the need for a new judge based upon the application of the criteria in this rule.

(i) Any request for a new district court judge shall be submitted to the District Court of Appeal Budget Commission for review and approval.

(ii) The chief judge of a district court of appeal shall submit the report showing the need together with the approval of the District Court of Appeal Budget Commission to the chief justice.

(3) The chief justice and the state courts administrator may then visit the chief judge and other representatives of the court submitting the request as well as representatives of The Florida Bar and the public to gather additional information and clarification about the need in the particular jurisdiction.

(4) The chief justice will submit recommendations to the supreme court, which will thereafter certify to the legislature its findings and recommendations concerning such need.

COURT COMMENTARY

1983 Adoption. Article V, section 9, of the Florida Constitution authorizes the establishment, by rule, of uniform criteria for the determination of the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits. Each year since the adoption of article V in 1972, this court, pursuant to section 9, has certified its determination of need to the legislature based upon factors and criteria set forth in our certification decisions. This rule is intended to set forth criteria and workload factors previously developed, adopted, and used in this certification process, as summarized and specifically set forth in In re Certificate of Judicial Manpower, 428 So.2d 229 (Fla.1983); In re Certificate of Judicial Manpower, 396 So.2d 172 (Fla.1981); and In re Certification, 370 So.2d 365 (Fla.1979).

2004 Amendment. Subdivision (b)(2) was amended to provide more specific criteria and workload factors to be used in determining the need for increasing or decreasing the number of judges on the District Courts of Appeal. In addition, the caseload level at which the court will presume that there is a need for an additional appellate judge has been increased from 250 to 350 filings per judge.

2006 Amendment. Subdivision (a) is amended to be consistent with the 2006 adoption of rule 2,036 relating to the criteria for determining the necessity and for increasing, decreasing, or redefining appellate districts and judicial circuits, pursuant to article V, section 9, Florida Constitution. The Court adopts the Commission on District Court of Appeal Performance and Accountability’s conclusion that a single case filing threshold is insufficient to capture the intricacies that make up judicial workload in the district courts. The Commission’s alternative to the 350-fil-ings-per-judge threshold is a weighted case dispositions per judge, which the Commission determined to be a meaningful measure of judicial workload.

The relative weighted caseload is determined by surveying a representative sample of judges on the relative degree of judicial effort put into each category of cases based upon an agreed typical case having a value of 100. Each category was assigned a relative weight number based upon the statewide average of the weight calculated through the survey. These weights were then applied to each court’s dispositions on the merits to determine the weighted caseload value and divided by 100.

This approach accommodates the important distinction between the number of cases filed and the judicial effort required to dispose of those cases. While the number of cases continues to increase, trends in the types of eases filed have dramatically changed the nature of the work that the district court judges handle. The weighted caseload approach not only accommodates the differences in types of cases by measuring their relative workload demands for judges, but it also accommodates the work performed by legal support staff.

Subdivision (b)(2)(B) establishes a presumption that the relative weight of cases disposed on the merits should fall below 280 per judge. Chief judges must consider the impact that the addition of a judge would have on this measure when applied to their courts’ dispositions on the merits for the previous year.

Every four years the Commission will measure the relative judicial effort associated with the cases disposed on the merits for the year immediately preceding. This will be accomplished by asking a representative sample of judges to approximate the relative weight of cases in relation to a mid-ranked case. The resulting weights will then be applied to each court’s dispositions on the merits to determine the weighted caseload value per judge.

APPENDIX 2

DCA Workload Report to the Supreme Court

September 2005

Charge of the Commission

Administrative Order No. AOSC04-21 directs the Commission, “[b]y June 30,2005 [to] propose a process and criteria for determining the resource needs and deployment patterns sufficient to address the workload of the district courts of appeal, including a re-examination of whether the 350-filings-per-judge threshold accurately reflects a basis for certifying the need for additional district court of appeal judges.”

On July 7, 20.05, the Chair, Judge Martha Warner, provided a written update to the Chief Justice regarding the Commission’s progress. Judge Warner reported that the Commission had concluded that a single number threshold most likely was insufficient to capture the intricacies both of the caseload as well as the other factors that make up judicial workload and indicated that the Commission was seeking to complete a relative case weight study. She stated that the Commission would provide additional information to the court by the end of September and that the re-write of the rule could be accomplished by Spring 2006.

Research Methodology:

The Commission began by reviewing its charge, Florida’s current certification rule, the national appellate court performance standards, the mission of the district courts of appeal, and the complimentary charge of the Committee on Appellate Court Workload and Jurisdiction.

While acknowledging some overlap, the Commission distinguished between those criteria that are relevant to whether the judges on a court are working above optimal capacity and those criteria that would suggest that the need for a jurisdiction change was indicated.

The Commission’s initial analysis included a review of the existing certification criteria to identify those that directly correlate to judicial workload and those which did not directly correlate. The Commission found that many of the criteria in rule 2.035 are not good measures or predictors of judicial workload. (See the staff analysis prepared by the Office of the State Courts Administrator).

The Commission set out to identify the factors and trends that facilitated this apparent increased capacity for judicial work. The Commission examined trends to identify: how change in case mix impacts judicial workload; historical trends that impact the ability to reliably forecast filings; the impact of technological advances in legal research, case processing, and document preparation on judicial productivity; and the impact of central staff support on judicial workload.

Findings:

No single factor can adequately establish the need to increase or decrease the number of judges on a court. \

Establishing an optimal number of filings-per-judge unrealistically presumes static circumstances. \

There is an important distinction between the number of cases filed and the judicial effort required to dispose of those cases. This distinction should be quantified and considered as a more precise measurement of workload than that shown by filing predictions.

Legal conditions, generally the result of legislation, translate into “blips” in filings that hamper the ability to develop reliable filing forecasts \

Judicial workload should be examined in light of judicial and support staff resources. Multiple factors contribute to the workload capacity of judges and an optimal analysis must accommodate trends in case filing, case mix, and staffing ratios. \ \

Judicial workload in any given district court should be examined in relationship to the judicial workload of the other district courts. \

Process for Establishing Relative Case Weights

Upon determining that case mix was a relevant factor for judicial workload, the Commission developed a process to measure the judicial effort associated with any given caseload. The Commission first established categories of similar cases and ranked them to identify a mid-ranlced case. Then, representative samples of judges from each court were asked to approximate the relative weight of each case category in relation to the mid-ranked case.

Judges were instructed to assign the relative weights based on a “typical,” “average,” or “normal” version of each case type. Based on the similarity and consistency of the judges’ responses, we were able to statistically determine that this methodology adequately represented judicial perceptions of the proportional relationship between case type categories. These weights were then applied to each court’s dispositions on the merits to determine the weighted caseload value. See Appendix A for the average relative weights and explanation of their application; see Appendix B for the instrument and instructions.

Figure 1. Application of Average Relative Weights to Cases Disposed After Submission on the Merits

The relative case weights may be used in several ways. First, they can show how a court’s judicial workload has increased or decreased over time. Second, they can allow a comparative assessment of the distribution of judicial workload between the districts. And finally, they can also contribute to an analysis of how the use of other non-judicial resources can affect judicial workload. Notwithstanding the usefulness of the case weight analysis, the Commission does not believe that the case weighted number of dispositions on the merits for any particular district court can provide a single numerical factor for determining the need for additional district court judges.

The Commission notes two issues with the survey results that require further comment. The first is in the area of administrative appeals. The First District weighted their administrative appeals with a substantially greater judicial effort than the other courts. This is because so many complex rule challenges are filed in Tallahassee, which is the headquarters of most state agencies. The relative weights calculated for this report reflect the statewide weight for administrative appeals, resulting in a lower relative case weight than is reflective of the actual workload of the First District. The Commission will continue to study this issue and attempt to isolate that portion of cases in the First District unique to that court, just as workers’ compensation cases are unique to that court. It will then assign a weighted workload measure to those cases commensurate to their greater complexity.

The second issue deals with the Third District and. its lack of central staff. Central staff handles the work-up of various categories of cases in the other courts, including writs and post-conviction relief matters. In the Third District, without central staff, these cases appear to demand more judicial effort, which is reflected in the relative weights assigned in the Third District’s survey results. Were the Commission to use the Third District’s weights for these cases the Third District’s relative case weight would be substantially higher. However, the use of the relative weight to compare courts may also tend to show the impact of various case management practices on the judicial workload.

Criteria:

The Commission recommends that workload, efficiency, effectiveness and professionalism criteria be evaluated in determining the need for increasing or decreasing the number of judges. Each of the criteria has objective and subjective components to be evaluated. The Commission has identified specific factors to be considered as part of each issue.

The Commission also recommends a process for reviewing the criteria, which includes a periodic review of the relative case weights established for the various case types and approval of certification requests by the District Court of Appeal Budget Commission.

Following is an outline of the process and the specific criteria for determining the need for increasing or decreasing the number of district court judges. To assist the Court in its consideration, the OSCA has prepared a certification report relative to the proposed criteria.

If the court generally approves of the recommended process and identified criteria, the Commission will submit appropriate amendments to rule 2.035, Florida Rules of Judicial Administration, by March 30,2006.

Outline for Amendments to Rule 2.035, Rules of Judicial Administration: District Court of Appeal Judges

Purpose: The purpose of this rule is to establish uniform criteria used by the Supreme Court in determining whether to certify the need for increasing or decreasing the number of judges on a district court of appeal.

Process:- The process for examining the uniform criteria in this rule includes:

■S an annual review of the need for new judges by each district court of appeal, approved by the District Court of Appeal Budget Commission, and a request to the Supreme Court for the certification of additional judges, and
•S a four year review of the workload trends of the district courts of appeal and consideration of adjustments in the relative case weights by the Commission on District Court of Appeal Performance and Accountability.

Criteria: The criteria for determining the need to certify the need for increasing or decreasing the number of judges on a district court of appeal are:

“ Workload: The workload factors to be considered for this criteria are:
■S trends in case filings;
v' trends in changes in case mix;
•/ trends in the backlog of cases ready for assignment and disposition;
v' trends in the relative weight of cases disposed on the merits per judge; and
S changes in statutes, rules of court, and case law that directly or indirectly impact judicial workload.
■ Efficiency: The efficiency factors to be considered for this criteria are:
S a court’s ability to stay current with its caseload, as indicated by measurements such as trend in clearance rate;
v' trends in a court’s percentage of cases disposed within the time standards set forth in the Rules of Judicial Administration and explanation/justification for cases not resolved within the time standards; and
S a court’s utilization of resources, case management techniques and technologies to maximize the efficient adjudication of cases, research of legal issues, and preparation and distribution of decisions.
* Effectiveness: The effectiveness factors to be considered for this criteria are the extent to which each judge has adequate time to:
thoroughly research legal issues, review briefs and memoranda of law, participate in court conferences on pending cases, hear and dispose of motions, and prepare correspondence, orders, judgments and opinions; \
expedite appropriate cases;
prepare written opinions when warranted;
develop, clarify, and maintain consistency in the law within that district, including consistency between written opinions and per curiam affirmances without written opinions;
review all decisions rendered by the court; \
perform administrative duties relating to the court; and \
participate in the administration of the justice system through work in statewide committees. \
■ Professionalism: The professionalism factors to be considered for this criteria are the extent to which judges report that they have time to:
■S participate, including teaching, in education programs designed to increase the competency and efficiency of the judiciary and justice system as well as the competency of lawyers;
S provide guidance and instruction for the professional development of court support staff; and
v'' participate in appropriate activities of the legal profession at both the state and local levels to improve the relationship between the bench and bar, to enhance lawyer professionalism, and to improve the administration of justice.

APPENDIX A

Relative Case Weights and Method of Calculation of Relative Weighted Judicial Workload

Relative Delphi Case Group_Weight*

NOA-Civil Final 204

NOA - Workers Compensation 190

NOA - Administrative (Other) 152

NOA-Civil Non Final 140

NOA - Juvenile (TPR) 128

Petitions - Certiorari 115

NOA - Criminal State Appeals 105

NOA-Criminal Judgment and Sentence 100 midranked case type

NOA - Juvenile 99

NOA - Criminal Post Conviction Non Summary 70

NOA - Civil Prisoner Litigation 67

Petitions - All Other 66

NOA - Criminal Habeas Corpus and Other 66

NOA - Criminal Post Conviction Summary 55

NOA — Administrative (Unemployment Compensation) 51

NOA - Criminal Anders 45

* Number is the statewide average weight for each case group from the survey responses.

The Relative Weighted Caseload per judge is calculated by multiplying the relative case weight for each Delphi case group times the number of dispositions on the during the fiscal year, totaling all weighted case dispositions for the court, and dividing by the number of judges on the court.

OSCA will use this method for calculating the relative case weight per judge for each court and will include the individual court’s calculations in the annual certification report.

APPENDIX B

liprerac ioart of florida Coramiision on District Court of Appeal Performance § Accountability

Dear Judge]

Thank you for agreeing to participate in the Relative Case Weight Survey. The Performance & Accountability Commission will use the results of this survey to provide additional information to the Supreme Court with respect to the criteria for determining the need for new judges. In The Court1 s opinion, In Re Amendment to the Florida Rules of Judicial Administration (Certification of Judges), Case No. SCos-1905 (2004), the court conditionally adopted our recommended $50 filings per judge as a threshold requirement to requesting a new judge. However, the Chief Justice directed a continuing study of this standard to specifically re-examine its relevance to judicial workload.

The Commission has reviewed the data and concluded that using unelaborated filing numbers as criteria was insufficient to capture the intricacies of the individual courts' caseloads as well as other factors that . make up the judicial workload. We therefore looked to other factors that might assist in determining a more nuanced set of measures for determining the need for judges. A relative case weight study provides us information regarding the relative judicial workload is involved in each type of case. This can be used to see how our workload has changed over time and thus provide information on the need for new judges as our caseload changes. The Commission will use your collective input'to determine a consensus relative weight for each case type group.

. > What ¡is. Delphi? The Delphi techpique was .developed jri the 1950s;es a way of achieving a ', consensus of opinion from a group of experts in situations where there was a lack of historical data or useful theory on which to form predictions about ; the future or in extremely complex situations where:. ;.j humanjpdgrfibnlwasatapremíúmÍThéJogíc ' ' behind the Delphi is the old adagé that ‘two heads1 are better, than one’, combined with the recognition that many group decision-making processes are • . .unsatisfactory. The process is designed to v..maximfcp£sroup performance, whllsbrnintmizing the problems that can arfee.due, for example, to the • impact of dominant group members.- In practical terms, a Delphi study typically proceeds by multiple, rounds in which subject matter experts contribute j their input anonymously; lnputmay,b,e In the form".; 1 ‘ .of numerical rating and/or written corfiments. ' • ,'S

The study is based on Delphi principles of consensus determinations. Current appellate judges who have at least two years’ experience are eligible to participate. A sample size for each court was calculated and you were asked to represent your court

Please carefully review the instructions on the next page. It is important that your participation be your own and not tainted by input from other judges or court staff. We will be able to identify the responses by district, but we will not be able to identify an individual judge's response. If you have questions about the survey design, you should contact a member of the Commission; if you have difficulty executing the survey instrument, please contact Arlene Johnson, OSCA, at (850) 922-5108.

Relative Weighted Caseload Study Instructions,

Case Types

To reduce the number of case types to be weighed, the Commission has grouped cases together in instances where we agreed the cases represented similar judge "workload.” There are 15 case groups.

Survey Scenario

Imagine that you have been assigned 15 cases representing each of these 15 grouped case types. Each will be disposed on the merits and the judicial work required will be representative of the average work required for that case type. Based on what your personal experience with cases in each group, you assign each a relative weight that reflects your estimation of the judicial work required to dispose of it.

It is critical that you assume each of these cases will require the average judicial workload involved in disposing of a case in that group. This means that for the cases in each group, the briefs (or petitions and responses) and record are of average length, that your preparation for OA or conference is of average duration, and an average opinion for that case group is written.

• The volume of a particular case type in your court is not directly relevant to its weight.

• Do not consider the efforts of your staff in disposing of the case.

Assigning Weights ftom Base Line

Appeal'feó|nj^)fiihmal ⅝¾⅞⅝¾! ⅜⅛⅛⅜⅜⅝) -⅝⅛ t/cas¿

To insure that everyone ranks the cases relative to a common base line, the Commission has assigned the Appeal from Criminal Judgment and Sentence case type a weight of 100 points. We believe that each of us had sufficient understanding of the judicial work required by our largest category of cases. Each participant in the study will assign a relative weight to the other 14 case groups based on how much more or less work is required to dispose of a typical case in that group.

• the lowest weight you can assign to a case type grouping is "1”

• there is no limit to the highest weight that you can assign relative to the 100 point case.

• you may assign the same weight to more than one case type grouping

Examples

If you think the work required by a case group represents one-fiffh of the work required by the 100 point case, assign a relative weight of "20”; if you think a case group requires 50% more work, assign a relative weight of 150; if you think a case group requires the same work as the Appeal from Criminal Judgment and Sentence, assign a weight of 100 points.

When do I need to do this?

The Relative Case Weight Survey will be available for completion from July 13, 2005 through July 21, 2005.

What do I need to do?

Please complete the following steps to access and complete the Relative Case Weight Survey.
Step 1; Log on to http://199.242.69.81/Sites/Extranet/home/cs/dca/default.aspx
Step 2: Enter User Name FLAEXT\dca5_2. The User Name is case sensitive.
Step 3: Enter Password Pa$$word. The Password is case sensitive.
Step 4; Select Relative Weighting from the left hand blue shade column under Surveys
Step 5: Select Respond to this Survey from the top blue shaded row and enter a numeric whole number weight for each case group.
Step 6: Select Save and Close to submit your survey response.
Step 7: Close the website.

If you experience difficulty in executing any of the steps above, please contact Arlene Johnson, OSCA, at (850) 922-5103 orjohnsona@flcourts.org.

      . We thank the Commission for its excellent and thoughtful work. The Commission is headed its by hardworking and conscientious Chair, the Honorable Martha C. Warner, Judge, Fourth District Court of Appeal, and consists of the following members: The Honorable William A. Van Nortwick, Judge, First District Court of Appeal; The Honorable Chris W. Altenbernd, Judge, Second District Court of Appeal; The Honorable Melvia B. Green, Judge, Third District Court of Appeal; The Honorable William D. Palmer, Judge, Fifth District Court of Appeal; Mr. Thomas D. Hall, Clerk, Florida Supreme Court; Ms. Mary Cay Blanks, Clerk, Third District Court of Appeal, and Mr. Ty W. Berdeaux, Marshal, Fifth District Court of Appeal.

      . For a complete discussion of the methodology used by the Commission, see the Commission’s September 2005 DCA Workload Report to the Supreme Court, which is attached as Appendix 2 to this opinion. Weighted caseload is based on the state average relative weights of cases disposed of on the merits established in September 2005.

      . The number established in the rule, 280, does not represent the filings per judge but is a weighted threshold calculated according to the process described in the Commission's 2005 report, which is attached as Appendix 2. Under new rule 2.035(b)(2)(B)(ii), this number will be reexamined every four years.

      . Subdivision (c), Additional Workload Factors, is amended to clarify that it applies only to trial courts.


text:
    INTCOMEX HOLDINGS, LLC, etc., Appellant, v. GRANT THORNTON INTERNATIONAL, etc., et al., Appellees.
    No. 3D05-1628.
    District Court of Appeal of Florida, Third District.
    May 3, 2006.
    Rehearing and Rehearing En Banc Denied Aug. 4, 2006.
    Adorno & Yoss and John Arrastia, Jr. and Jack R. Reiter, Miami, for appellant.
    Kirkpatrick & Lockhart Nicholson Graham and Jeffrey T. Kucera; Mayer, Brown, Rowe & Maw and Javier H. Rubinstein, Nicola Jackson, and Violeta I. Balan (Chicago); Burlington, Weil, Schwiep, Kaplan & Blonsky and Kevin C. Kaplan, Miami, for appellees.
    Before GERSTEN, FLETCHER, and CORTINAS, JJ.
   PER CURIAM.

We find that the trial court’s decision to dismiss Appellant’s second amended complaint for forum non conveniens did not constitute a “clear abuse of discretion.” See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). “[W]here the [trial] court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id.

Affirmed.