Instead of the usual issue of Case Law Update this month, here is an outline of the lecture I gave at the Dade County Trail Lawyer's Seminar on October 24. I hope you find it useful. The regular Case Law Update format will return next month.
Preserving Trial Error for Appeal
Dade County Trial Lawyer's Association
Masters of the Courtroom Seminar
October 24, 1996
A. Famous last words from a trial lawyer: "I don't care about preserving the record. I'm going to win this case".
B. It's true that there are some errors you may decide to waive for tactical reasons. But what if you do lose? What if your opponent wins and you want to cross appeal trial errors? If you don't preserve the issues, you're left with FUNDAMENTAL ERROR. That's not much.
C. Fundamental error is error that is reversible even though it was not properly preserved. It is error that is so egregious and pervasive and that so affects the fairness of the proceedings that no objection is required. Error that "goes to the foundation of the case or goes to the merits of the cause of action". Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970).
1. In Reynolds v. State, 580 So.2d 254 (1st DCA 1991) the court held that repeatedly injecting defendant's race into a rape trial, on the issue of consent is fundamental error.
2. In City of Orlando v. Birmingham, 539 So.2d 1133 (Fla. 1989), the court held, in a personal injury action arising out of a wrongful arrest and false imprisonment, that an erroneous instruction on the legal definitions of probable cause and civil disobedience is not fundamental error.
3. In Stevens v. Allegro Leasing, Inc., 562 So.2d 380 (4th DCA 1990), the court held that the application of the wrong version of a statute was fundamental error that could be raised on appeal despite the fact that the appellant did not raise the issue in the trial court. The theory is that a party cannot recover upon a nonexistent right.
D. From an appellate perspective, it's best to "jump through the hoops" and preserve for review any error which you might want to raise on appeal. See Eaton, Jumping Through the Hoops to Meaningful Appellate Review: Protecting the Record at Trial, 54 Fla. B. J. 12 (May, 1988). You may decide to waive an appellate issue for purposes of trial strategy, but at least you should do it knowingly and intelligently, not by accident.
E. The principal behind the requirement of preserving error is to bring it to the trial judge's attention, explain the issue to the judge, and give the judge an opportunity to correct it at a time when the trial judge has the ability to do so.
F. Thus, the essentials of an objection, motion or request are:
1. It must be timely
2. It must be specific
3. It must be ruled on
4. It must accurately appear in the record
A. The failure to seek review by certiorari of a departure from the essential requirements of law in an interlocutory order does not waive that issue for appeal. Nor does a denial of certiorari without opinion preclude raising the issue in an appeal from a final judgment See Accent Realty v. Crudele, 496 So.2d 158 (3d DCA 1986), rev. denied 506 So.2d 1040 (Fla. 1987).
B. A partial final judgment (e.g., a summary judgment) which totally disposes of an entire case as to any particular party must be appealed within 30 days of rendition. Fla. R. App. P. 9.110(k).
A. This is an example of errors that you might wish to waive for tactical reasons, such as getting an even worse jury if you jump through all the hoops to preserve the error. But this is also a place where you can carefully preserve error, and make the job easy for your appellate lawyer.
B. Erroneous denial of challenge for cause
1. You must (a) use up all of your peremptory challenges; (b) request an additional peremptory challenge, (c) specify the juror you would use it on, and (c) be stuck with that juror on the panel. Metropolitan Dade County v. Sims Paving Corp., 576 So.2d 766 (3d DCA 1991); Ter Kuerst v. Miami Elevator, 486 So.2d 547 (Fla. 1986).
2. An alternative way to preserve this issue is: (a) exercise a peremptory challenge on that juror; (b) exhaust all other peremptories; (c) request an additional peremptory challenge; and (d) specify on which juror you would have exercised the additional challenge. Trotter v. State, 576 So.2d 691 (Fla. 1990).
C. Discrimination by opposing party in use of peremptory challenges
1. The courts now recognize that it is unconstitutional to challenge a prospective juror based on race, national origin (at least hispanic) or gender. See State v. Neil, 457 So.2d 481 (Fla. 1984) (race); Alen v. State, 616 So.2d 452 (Fla. 1993) (hispanics); Abshire v. State, 642 So.2d 542 (Fla. 1994) (gender); and Joseph v. State, 636 So.2d 777 (Fla. 3d DCA 1994) (religion).
2. In order to preserve this issue: Object to the other side's peremptory challenge on the grounds of discrimination and ask the court to conduct an inquiry. You must demonstrate on the record that the juror belongs to a protected group. Melbourne v. State, 21 Fla. L. Wkly. S358 (Fla. 1996).
a. This requires the court to conduct an inquiry. The burden is on the proponent of the strike to give a race-neutral explanation. If the court refuses to conduct the inquiry, the issue is sufficiently raised. State v. Johans, 613 So.2d 1319 (Fla. 1993). However, you still must renew the objection right before the jury is sworn. Melbourne v. State, 21 Fla. L. Wkly. S358 (Fla. 1996).
b. If the court conducts the inquiry and overrules your objection (finding no discrimination), you must take further steps to preserve the error.
(1) You can move to strike the panel, although this is not the preferred method. Joiner v. State, 618 So.2d 174 (Fla. 1993).
(2) You can also preserve it by accepting the jury but expressly stating that your acceptance is subject to your earlier Neil objection, or that you accept the panel reserving, or without waiving, your prior objection to the striking of the specific juror. Suggs v. State, 620 So.2d 1231 (Fla. 1993) (error preserved where panel accepted "other than our prior objection to the striking of juror number one"); Brown v. State, 620 So.2d 1240 (Fla. 1993) (error not preserved).
(3) You must renew the objection before the jury is sworn. Melbourne v. State, 21 Fla. L. Wkly. S358 (Fla. 1996).
-- Many of the points discussed here will also apply in closing argument.
A. Inadequate time allowed for opening or closing, or for voir dire:
1. In Strong v. Mt. Dora Growers Co-operative, 495 So.2d 1238 (5th DCA 1986), the court held that this issue was adequately preserved when counsel objected and asked the court for additional time before the argument began.
2. Failure to object waived the issue as to opening statement in Knapp v. Shores, 550 So.2d 1155 (3d DCA 1989), rev. denied 563 So.2d 634 (Fla. 1990) overruled on other grounds, Bulldog Leasing Co. v. Curtis, 630 So.2d 1060 (Fla. 1994). However, in the same case, timely objections properly preserved the issues of inadequate time for voir dire and closing argument.
3. However, to the extent you can, (to the extent time and the court permit), you should point out to the court the factors the court is to consider in setting these time limits: e.g., length of trial, number of witnesses, amount of evidence, importance of the case, number and complexity of the issues, amount involved and press of time. Woodham v. Roy, 471 So.2d 132 (Fla. 4th DCA 1985), rev. denied 480 So.2d 1295 (Fla. 1985).
4. You can also ask for more time at the end of your argument when the court tells you time is up and you haven't covered all you want to cover. Failure to do this probably doesn't waive the issue; doing it may impress the appellate court with the practical effect of the court's ruling.
B. Improper argument by opposing counsel.
1. Object! Object during or immediately after the argument. Ed Ricke & Sons, Inc. v. Greene, 468 So.2d 908 (Fla. 1985). If the court thinks you did not think it was important or prejudicial enough to catch your attention during or immediately after the argument, chances are the court won't be very impressed with it on appeal. Bishop v. Watson, 367 So.2d 1073 (3d DCA 1979). But just an objection is not enough.
2. Get a ruling.
a. Some cases hold it's the trial court's responsibility to make a specific ruling. Colvin v. Williams, 564 So.2d 1249 (4th DCA 1990).
b. Other cases hold it is the responsibility of the objecting party to get a ruling, and if you don't get a ruling, you've waived it. Newton v. South Florida Baptist Hospital, 614 So.2d 1195 (2d DCA 1992) rev. denied 621 So.2d 1066 (Fla. 1993); Schreidell v. Shoter, 500 So.2d 228 (3d DCA 1987); LeRetilley v. Harris, 354 So.2d 1213 (4th DCA 1978) cert. denied, 359 So.2d 1216 (Fla. 1978).
c. Hand waving and eye rolling by the judge do not show up in the transcript and therefore do not constitute a ruling. Don't be afraid to ask the court for a ruling.
d. If the court does rule against you, and the same error is repeated, you probably don't have to object every time. 354 So.2d at 1213. However, it's safe to keep objecting.
3. If the objection is sustained, ask for a curative instruction.
a. The failure to ask for a curative instruction usually constitutes a waiver. See Baggett v. Davis, 124 Fla. 701, 169 So. 372 (Fla. 1936).
b. If the argument is so egregious that "neither rebuke nor retraction" could cure it, the court may reverse anyway. See Lindo's Rent A Car v. Standley, 590 So.2d 1114 (4th DCA 1991).
c. On the other hand, if you ask for a curative instruction, and the court gives it, the appellate court may hold that the instruction cured the improper effect of the argument, and you will lose this issue on appeal. Albertson's Inc. v. Brady, 475 So.2d 986 (2d DCA 1986), rev. denied 486 So.2d 595 (Fla. 1986). I'm not suggesting that you deliberately refrain from asking for a curative instruction to create reversible error. You can and should argue to the trial court that any curative instruction will not be sufficient to cure the impact of the argument on the jury. But you'll never know if it was bad enough, in the context of the whole trial, until you're up on appeal.
4. If the objection is sustained, move for mistrial. You can ask the court to defer ruling until after the jury comes back. This procedure was approved by the Supreme Court in Ed Ricke & Sons v. Greene, 468 So.2d 908 (Fla. 1985). However, you can't wait until after the jury retires to make the motion. Wasden v. Seaboard Coast Line R. Co., 474 So.2d 825 (2d DCA 1985), rev. denied, 484 So.2d 9 (Fla. 1985).
5. If the objection is overruled, courts generally will not require you to perform the useless act of asking for a curative instruction or a mistrial. Goff v. 392208 Ontario Ltd., 539 So.2d 1158 (3d DCA 1989); Newton v. South Florida Baptist Hospital, 614 So.2d 1195 (2d DCA 1993), rev. denied, 621 So.2d 1066 (Fla. 1993). See Bullard v. State, 436 So.2d 962 (3d DCA 1983), rev. denied 446 So.2d 100 (Fla. 1984). You may want to do so anyway, just to take away ammunition the other side my try to use on appeal.
6. In a very few cases, courts will hold that certain arguments are so inflammatory that they constitute fundamental error.
a. "Golden rule" arguments are the classic example -- arguments where the jurors are asked to put themselves in a party's place and think how they would feel and how much money they would want. See, e.g., Bullock v. Branch, 130 So.2d 74 (1st DCA 1961). See also Carlton v. Johns, 194 So.2d 670 (4th DCA 1967) (suggesting that insurance company would pay any judgment treated as fundamental error); Schubert v. Allstate, 603 So.2d 554 (5th DCA 1992), rev. dismissed 606 So.2d 1164 (Fla. 1993) (cumulative effect of personal attacks in defendant's opening statement and closing argument treated as fundamental error).
b. But more and more cases are holding that a golden rule argument is not fundamental error. Schreidell v. Shoter, 500 So.2d 228 (3d DCA 1986), rev. denied, 511 So.2d 299 (Fla. 1987) (golden rule argument not fundamental). See also Reynolds v. State, 580 So.2d 254 (1st DCA 1991) (repeatedly injecting defendant's race into a rape trial is fundamental error); but see White Const. Co. v. DuPont, 455 So.2d 1026 (Fla. 1984), comments by counsel about differences in race and economic standing between parties not fundamental error).
c. Recently, a substantial number of cases have held certain arguments to be fundamental error and reversed even though there was no objection. E.g., Al-Site Corp. v. Della Croce, 647 So.2d 296 (Fla. 3d DCA 1994) (personal attacks against opponent or opponent's counsel); Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA 1994), rev. dismissed, 649 So.2d 232 (Fla. 1994) (personal attacks; reference to facts not in evidence); Owens Corning Fiberglass v. Morse, 653 So.2d 409 (Fla. 3d DCA 1995), rev. denied, 662 So.2d 932 (Fla. 1996) (accusing opponent's lawyer of trickery and of telling client what to say on the stand).
d. The DCA's are in conflict on these issues. The standards they apply are sometimes subjective. You should not make these arguments. If the other side makes them, you should object and move for a mistrial.
7. There is no error that you can count on being fundamental. You should preserve it if you hope to rely on it in an appeal.
A. Errors in excluding evidence:
1. You must proffer the excluded evidence at trial. Key v. Angrand, 630 So.2d 520 (3d DCA 1994); §90.104, Florida Statutes; Fla. R. Civ. P. 1.450(b). The clerk must keep a record of the evidence excluded (mark exhibits, etc.).
2. "[T]he substance of the evidence [must be] made known to the court by offer of proof or [must be] apparent from the context within which the questions were asked". §90.104, Florida Statutes.
3. The proffer may be made by putting the witness on the stand, and asking the questions and getting the answers; by a written submission by counsel; or by counsel's statement on the record describing what the witness would have said. Ehrhardt, Florida Evidence, §104.3 at 16 (1993).
4. Since the evidence is being kept from the jury, the proffer should be made out of the hearing of the jury, to avoid prejudicing them. §90.104(2), Florida Statutes. See Musachia v. Terry, 140 So.2d 605 (3d DCA 1962). That way, the witness can answer the questions, the jury doesn't hear the answer, but the appellate court can see what the testimony would have been. Id.
5. The trial court's refusal to allow a complete proffer may be reversible error. E.g., Musachia, supra.
6. The rule and some cases state that a proffer is not necessary if the substance of the evidence is "apparent from the context". This one is tricky.
a. In Wright v. Schulte, 441 So.2d 660, 663 (2d DCA 1983), rev. denied, 450 So.2d 488 (Fla. 1984), where the trial court erroneously excluded plaintiff's expert as unqualified, the court stated that a proffer is not necessary "where the proffer would be a useless ceremony or where the court indicates that such offer would be unavailing or that the witness is incompetent".
b. In Key v. Angrand, 630 So.2d 520 (3d DCA 1994), the court held that the above quote was dicta and that a proffer is still necessary when the court excludes the evidence on the grounds that the witness is incompetent, unless the record is sufficient to establish what the expert would have said. The court pointed out that "It is a fair inference that in Wright the substance of the excluded opinion of the plaintiff's medical malpractice expert sufficiently appeared on the face of the record, so as to render a more detailed proffer unnecessary".
B. Orders erroneously admitting evidence.
1. A motion in limine is not sufficient to preserve for appeal an error in the admission of evidence. You must object when the question is asked. Swan v. Florida Farm Bureau, 404 So.2d 802 (5th DCA 1981).
2. The objection must be specific, must be made before the evidence is admitted, and must state adequate legal grounds to enable the judge to rule (or the grounds must be apparent from the context). §90.104(1)(a), Florida Statutes.
3. If the objection is overruled, it is not necessary to move for a mistrial. Simmons v. Baptist Hospital, 454 So.2d 681 (3d DCA 1984).
4. If the answer is given, or if the question itself discloses to the jury what the answer would be, see Qualls v. Stancato, 450 So.2d 1197 (1st DCA 1984), you must ask for a curative instruction, move to strike, or move for a mistrial, depending on whether you think it is curable with an instruction. §90.104(1)(a). See Simmons v. Baptist Hospital, 454 So.2d 681 (3d DCA 1984) (error reversible despite curative instruction where curative instruction as given was inadequate and was given the next day); Fla. Std. Jury Instr. 1.2 (curative instruction should be given immediately).
5. A motion to strike is not sufficient if the objecting party has merely waited until the answer is given, hoping it would be favorable. McMillan v. Reese, 61 Fla. 360, 55 So. 388, 390 (Fla. 1911).
6. If the evidence is admissible only with a limiting instruction, the limiting instruction must be requested and given at the time of the admission of the evidence. §90.107, Florida Statutes.
7. A very few cases hold that the error is preserved if a motion in limine is denied, if the objection is renewed at trial the first time the evidence is offered, and the trial court states on the record that objections to subsequent testimony of the type at issue would be considered timely without renewing the objection every time. Fincke v. Peeples, 476 So.2d 1319 (4th DCA 1985), rev. denied, 486 So.2d 596 (Fla. 1986). Unless the court makes such a ruling specifically and clearly on the record, I don't advise relying on it. You should keep objecting until the judge tells you to be quiet.
8. There are also a few cases that say, where the judge has made a pretrial ruling that allows the evidence in, the error is not waived by attempting to diminish the impact of the erroneous ruling, for example, by addressing the evidence in opening statement. Porter v. Vista Building Maintenance Serv., Inc., 630 So.2d 205 (Fla. 3d DCA 1993), rev. denied, 640 So.2d 1109 (Fla. 1994). However, you should not rely on these cases at trial unless you absolutely have to! Such cases are rare, and are more helpful on appeal than they are at trial. The issue will more likely be preserved if you do not do this. However, this is a strategic decision you will have to make at trial, weighing the risk of waiver against the likelihood that you can minimize the harm done by the evidence.
9. If you think a curative instruction cannot erase the harmful effect of the error, you can argue that to the judge, and ask for a mistrial instead of a curative instruction. See United States v. Dunn, 307 F.2d 883, 886 (5th Cir. 1962) ("if you throw a skunk into the jury box you can't instruct the jury not to smell it."); Fischman v. Suen, 672 So.2d 644 (Fla. 4th DCA 1996).
10. If the judge offers you the opportunity to move for a mistrial, and indicates that he is inclined to grant it, you have waived your right to new trial if you don't take him up on it. Saxon v. Chacon, 539 So.2d 11 (3d DCA 1989). Try moving for mistrial and asking the judge to reserve ruling.
C. A motion for new trial is not necessary to review questions of law that have otherwise been preserved, such as the admission or exclusion of evidence, or giving an erroneous instruction. Smith v. McCullough Dredging Co., 152 So.2d 194 (Fla.3d DCA 1963), cert denied 165 So.2d 178 (Fla. 1964).
A. Move for a directed verdict
1. Move for directed verdict at the close of the adverse party's evidence. State specific grounds -- failure to state a ground may waive that particular ground. Fla. R. Civ. P. 1.480(a). E.g., Perlman v. Ferman Corp., 611 So.2d 1340 (4th DCA 1993).
Plaintiffs, don't forget to specifically ask for directed verdict on affirmative defenses. Remember that a defendant has the burden to plead and prove that the negligence of a Fabre defendant was a proximate cause of the plaintiff's injury. If the defendant does not prove all of the elements -- duty, breach and proximate cause -- by a preponderance of the evidence, move for a directed verdict on the Fabre defense. See Nash v. Wells Fargo, 21 Fla. L. Wkly. S292 (Fla. 1996).
2. If the motion is denied, or if the court reserves ruling, move for a directed verdict again at the close of all the evidence.
B. Move for a J.N.O.V., or for judgment in accordance with the motion for directed verdict.
1. If the motion for directed verdict is again denied or the court reserves ruling, then within ten days after the verdict is returned, file a motion for judgment in accordance with motion for directed verdict.
The case law is not entirely clear on whether this is absolutely required. See Philpot v. Bouchelle, 411 So.2d 1341 (Fla. 1st DCA 1982) (issue preserved by motion for directed verdict at close of opponent's case, at close of evidence, and at charge conference). But it certainly is the safest thing to do.
2. If you have not moved for a directed verdict at every opportunity at trial, you cannot prevail on a motion for J.N.O.V., and it is reversible error for the trial court to grant a J.N.O.V. under these circumstances. Allstate v. Gonzalez, 619 So.2d 318 (3d DCA 1993).
3. If you move for a directed verdict at the close of the plaintiff's case, and the court reserves ruling, be careful. In 6551 Collins Ave. Corp. v. Millen, 104 So. 2d 337 (Fla. 1958), aff'g 97 So. 2d 490 (Fla. 3d DCA 1957), the Supreme Court held that the motion was waived, even though the trial court had reserved ruling on the motion at the close of the Plaintiff's case:
if the trial judge simply announces 'ruling reserved' on the motion, it would seem to be incumbent upon the Defendant to secure from the judge, as a measure of precaution, an affirmative statement as to his reason for deferring or 'reserving' his ruling, since there might be many different situations or circumstances under which a trial judge would deem it expedient to reserve ruling on the motion at the given moment.
104 So. 2d at 342. Because there was no affirmative statement on the record of the reason the trial judge reserved ruling at the close of plaintiff's case, the Supreme Court held that the issue was not properly preserved. 104 So. 2d at 342.
C. Move for a new trial, arguing that the verdict is contrary to the evidence and contrary to the manifest weight of the evidence.
1. A motion for new trial will not get you your directed verdict or judgment in accordance with directed verdict if you have not moved for directed verdict at the appropriate times, but it can occasionally get you a new trial. General Motors Acceptance Corp. v. City of Miami Beach, 420 So.2d 601 (Fla. 3d DCA 1982), rev. denied, 431 So.2d 988 (Fla. 1983).
2. A motion for new trial may be joined with a motion for directed verdict. Fla. R. Civ. P. 1.480(b). The judge may enter an order granting the J.N.O.V. or in the alternative granting the new trial, but he may not enter an order that grants both a J.N.O.V. and a new trial. Frazier v. Seaboard Systems Railroad, 508 So.2d 345 (Fla. 1987).
3. If the court grants a motion for mistrial or for new trial before the jury is discharged, any motions for new trial or for J.N.O.V. are nullities. It is as if the verdict was never returned. If the court reserves ruling on a motion for mistrial until after the jury is discharged, or where the motion is not made until after the jury is discharged, the motion is properly treated as a motion for new trial. Keene Bros. Trucking v. Pennell, 614 So.2d 1083 (Fla. 1993)
D. If you are hit with a motion for directed verdict on an issue which you somehow overlooked and failed to prove, and you can prove what you need to prove, ask for leave to reopen your case and proffer the evidence you want to introduce. The trial judge has discretion to grant such a motion; failure to make such a motion will waive any relief you might otherwise get. Sheriff of Orange County v. Boultbee, 595 So.2d 985 (Fla.5th DCA 1992), rev. dismissed, 606 So.2d 1164 (Fla. 1993). (Roy Wasson suggests that you should always, right before you rest, move all your exhibits into evidence, in case you've overlooked anything).
1. You must specifically request instructions in writing within the time set in the pretrial order, and no later than the close of all the evidence. Fla. R. Civ. P. 1.470(a); Underwriters at LaConcorde v. Airtech Servs., Inc., 468 So.2d 386 (Fla. 3d DCA 1985), quashed on other grounds, 493 So.2d 428 (Fla. 1986). In City of Orlando v. Birmingham, 539 So.2d 1133 (Fla. 1989), the court held that the failure to timely object to an erroneous instruction on the legal definitions of probable cause and civil disobedience in a false arrest case waived the error.
2. However, if you initially request an instruction in writing, and the judge rejects it, an oral request for an alternative instruction may preserve the issue, if preparing an alternative instruction would have been difficult or impossible. Morowitz v. Vistaview Apts., 613 So.2d 493 (3d DCA 1993), rev. denied 626 So.2d 210 (Fla. 1993). You should try to have alternative instructions ready, but if you don't, an oral request is better than nothing
1. The failure to object to a jury instruction at the charge conference waives any error in the instructions. Fla. R. Civ. P. 1.470(b).
2. If the judge incorrectly reads the charge, you should object at the time of the error, or at least in time for the court to correct it. Klepper v. J.C. Penney Co., 340 So.2d 1170 (Fla.4th DCA 1977). Usually you can do this at the end of the reading of the charge, before the jury retires to deliberate. Very rarely, a court will allow it to be raised in the motion for new trial. LaRussa v. Vetro, 254 So.2d 537 (Fla. 1971). Don't count on it. But if you've inadvertently failed to notice it at trial, raising it in your motion for new trial might be worth a shot.
A. Verdict form
1. You must specifically request the form you want in writing. Failure to request it waives it. E.g, Hurley v. Government Employees Ins. Co., 619 So.2d 477 (Fla. 2d DCA 1993).
2. Failure to object to an incorrect verdict form waives the error. See, e.g, Hurley v. Government Employees Insurance Co., 619 So.2d 477 (Fla.2d DCA 1993).
3. Requesting an erroneous verdict form is "invited error" which cannot be corrected in a motion for new trial or on appeal. Schaffer v. Pulido, 492 So.2d 1157 (Fla.3d DCA 1986).
B. Inconsistent verdict
1. An objection to an inconsistent verdict is waived unless you ask the trial judge to allow the jury to reconsider its verdict. Adoro Marketing, Inc. v. Silva, 623 So.2d 542 (Fla.3d DCA 1993), rev. denied, 634 So.2d 622 (Fla. 1994). An example of an inconsistent verdict is the verdict in Adoro, a products liability case, in which the jury found negligence in the design or manufacture of a machine, but found no defect.
2. One court has found a similar inconsistency to be fundamental error. North American Catamaran Racing Assoc. v. McCollister, 480 So.2d 669 (Fla.5th DCA 1985), rev. denied, 492 So.2d 1333 (Fla. 1986), Don't count on it.
3. It is not necessary to ask the judge to send the jury back if the verdict is merely inadequate.
a. In Cowart v. Kendall United Methodist Church, 476 So.2d 289 (Fla.3d DCA 1985), the jury returned a verdict of $400,000 for the wife, who was physically injured in the accident, and zero for the husband whose only claim was for loss of consortium. The court held that the zero consortium verdict was inadequate, not inconsistent. Therefore, a contemporaneous objection and motion were not required. The point was adequately preserved by the plaintiff's motion for new trial, which argued the inadequacy of the verdict.
b. A similar verdict was treated as inconsistent in Holland America Cruises v. Underwood, 470 So.2d 19 (Fla. 2d DCA 1985), requiring a contemporaneous objection and a request that the jury be reinstructed and sent back.
c. How do you tell an inadequate verdict from an inconsistent one? Who knows? You have to use your judgment. One judge has argued in a concurring opinion that, under the special verdict forms now used under the tort reform act, zero verdicts are both inconsistent and inadequate. Cowen v. Thornton, 621 So.2d 684 (2d DCA 1993)(concurring opinion), rev. denied, 634 So.2d 629 (Fla. 1994). He would require an objection before the jury is discharged in all cases. This may be a coming trend, but it does not seem yet to be the law.
The Fourth DCA has just certified to the Supreme Court the question of whether a verdict finding a permanent injury but awarding zero future noneconomic damages is inconsistent or inadequate, and how the issue must be preserved. Allstate Ins. Co. v. Manasse, 21 Fla. L. Wkly. D2102 (Fla. 4th DCA 1996).
d. In Berez v. Treadway, 599 So.2d 1028 (Fla.4th DCA 1992), the court held that, once the jury was discharged, it could not be called back to reconsider a verdict that was inconsistent in that it awarded economic damages, but zero for pain and suffering. The defendant had requested that the jury be recalled; the plaintiff objected and moved for mistrial. The court held that the motion for mistrial should have been granted.
e. You also have to be careful about the words you use in your argument. Those words may influence how the court treats the motion. If, at trial, you didn't ask the judge to send the jury back because the verdict was inconsistent, you should not argue in your motion for new trial that it was inconsistent. See Sweet Paper Sales Corp. v. Feldman, 603 So.2d 109 (Fla.3d DCA 1992) (failure to object before jury was discharged precluded grant of new trial on grounds that verdict was "inconsistent"). Argue in your motion for new trial that it was inadequate, contrary to the evidence, or against the manifest weight of the evidence.
C. Excessive or inadequate verdict
1. The proper way to challenge an inadequate or excessive verdict is in a motion for new trial. Cowen v. Thornton, 621 So.2d 684 (Fla.2d DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994).
2. It is error to grant a remittitur or additur in the absence of a motion requesting such relief. Fitzmaurice v. Smith, 593 So.2d 1197 (Fla.4th DCA 1992); §768.74, Florida Statutes. Therefore, to preserve the right to remittitur or additur, you should accompany your motion for new trial with a request for remittitur or additur.
3. The court must give the party a choice between a new trial and the remittitur or additur. Therefore, ask for the relief in the alternative.
4. Any motion for new trial must be timely -- within ten days of the verdict, or the judge loses jurisdiction to grant it. Fla. R. Civ. P. 1.530. See, e.g., Hyster Co. v. Morales, 591 So.2d 1082 (3d DCA 1992) (no jurisdiction to grant untimely motion for new trial).
5. In a non-jury trial, a motion for new trial is not required to preserve this issue for appeal. Dorvil v. Purolator Courier Corp., 578 So.2d 294 (3d DCA 1991).
D. The Two Issue Rule
1. Where two or more theories are submitted to a jury on a general verdict form, the appellate court must affirm as long as there is evidence to support one of the theories, or no error as to one of the theories. Colonial Stores v. Scarbrough, 355 So.2d 1181 (Fla. 1978).
2. The only way to preserve it is to object to any general verdict form and ask for a special verdict form. Colonial Stores, 355 So.2d at 1186. Then, if there is error as to either count, the appellate court can remand for new trial as to both counts Id.
3. Courts have applied this to issues other than the separate counts of a complaint.
a. Odom v. Carney, 625 So.2d 850 (Fla. 4th DCA 1993) (failure to request itemized verdict waived defendant's right to PIP setoff because court could not determine how much of the award represented medical expenses; court must presume that jury decided all issues in favor of prevailing party)
b. Evering v. Smithwick, 526 So.2d 185 (Fla.3d DCA 1988) (objection to separate punitive damages verdict form for separate parties waived any excessiveness as to one defendant, unless award was excessive as to both defendants);
c. Gonzalez v. Leon, 511 So.2d 606 (Fla.3d DCA 1987), rev. denied, 523 So.2d 577 (Fla. 1988) (failure to separate out elements of negligence on verdict form waived error in instruction on causation, where jury could have found defendants breached no duty).
4. Where the trial court allows a special verdict form as to each theory of liability, the two issue rule does not require a special a jury finding on every factual basis for each theory. Emerson Electric Co. v. Garcia, 623 So.2d 523 (Fla.3d DCA 1993).
5. In First Interstate Dev. Corp. v. Ablenado, 511 So.2d 536 (Fla. 1987), the court affirmed a judgment for the plaintiff where the plaintiff asserted two separate fraud claims, each of which had a separate measure of damages, and the verdict form contained only one line for damages.
6. The rule does not apply when the error was prejudicial to the party's entire case. Browning v. Lewis, 582 So.2d 101 (Fla.2d DCA 1991) (error in admission of plaintiff's alcohol abuse prejudiced plaintiff's entire case; special verdict on elements of negligence not required to preserve issue).
7. The Third District has refused to apply the two issue rule where the error complained of was dismissal of a count which was never tried. Beraglia v. Owens-Corning, 606 So.2d 1213 (Fla.3d DCA 1992)(general verdict of no negligence does not preclude review of dismissal of strict liability count).
E. Juror misconduct
1. Move for a jury interview pursuant to Rule 1.431(h).
2. The motion must be served within 10 days of the verdict, unless good cause is shown for making it later. Id.
3. The motion and supporting affidavits must set forth a legally sufficient reason to interview the jurors, not matters that inhere in the verdict. Hackman v. City of St. Petersburg, 632 So.2d 84 (Fla. 2d DCA 1993).
4. The rule and cases require "sworn factual allegations which, if true, would require a trial court to order a new trial". Baptist Hospital v. Maler, 579 So.2d 97 (Fla. 1991).
5. An accompanying letter from a juror is not enough; the factual allegations must be sworn. Travelers Ins. Co. v. Jackson, 610 So.2d 680 (Fla.5th DCA 1992).
6. Improperly contacting a juror without leave of court waives any right to seek a new trial on this basis. Walgreens, Inc. v. Newcomb, 603 So.2d 5 (Fla.4th DCA 1992), rev. denied, 613 So.2d 7 (Fla. 1993), citing Fla. R. Civ. P. 1.431(h); Rule 4-3.5(d)(4), Rules Regulating the Florida Bar, rev. denied 613 So.2d 7 (Fla. 1993).
The appellate courts will almost never reverse unless the issue has been properly and timely presented to the trial judge, with a full explanation of the error and the law, and a request to correct the problem, in time for the trial judge to correct it. You owe it to the court and to your client not to hold back, unless you truly make a strategic decision to waive the issue.
The assistance of Christopher Kurzner, Esq., in the preparation of an earlier version of this outline is gratefully acknowledged.