Inconsistent, Inadequate, Unbalanced, and Compromised: Breaking Up with Flawed Verdicts.

• Author: Sherman, James

Most verdicts are logical. The jury either believed the plaintiff's case or didn't and returned a decision reflecting its viewpoint. But sometimes the jury's verdict just doesn't make sense. Like a jilted lover, even the most seasoned attorney may find himself asking, "Was it me? Was it something I said?" In those instances, it is important to quickly identify the irregularity. The losing party's ability to challenge the award may depend on it. This article identifies the four most common types of irregular verdicts: those that are compromises, inconsistent, inadequate, or against the manifest weight of the evidence. Hopefully, paralleling them to ill-fated relationships will add levity to an otherwise banal subject.

Inconsistent Verdicts

Inconsistent verdicts are like a partner whose preferences lack rhyme or reason. It is crucial for the legitimacy of the judicial system that jury verdicts are, at least ostensibly, based on sound logic. For that reason, inconsistent verdicts, though perhaps the rarest form of irregular jury returns, warrant scrutiny. As the name implies, these verdicts contain two simultaneous determinations that cannot be squared:

Where the findings of a jury's verdict in two or more respects are findings with respect to a definite fact material to the judgement such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court's judgment based thereupon is erroneous. (1)

It is important to distinguish between the type of inconsistent verdict described above and the risk of inconsistent verdicts occasionally raised as a policy consideration against bifurcation or separate trials. (2) The latter concerns two separate verdicts, by two different triers of fact, with contradictory determinations. This discussion instead focuses on the type described in Crawford v. DiMicco, 216 So. 2d 769, 771 (Fla. 4th DCA1968), above, in which the inconsistency is self-contained within one singular verdict.

Inconsistent verdicts are most often found in product liability cases in which claims of negligence and design defect are submitted to the jury simultaneously. (3) In fact, the Committee Notes to Standard Jury Instruction 403.7 warn of this exact risk. (4) Coba v. Tricam Indus., Inc., 164 So. 3d 637 (Fla. 2015), is a great example. In Coba, after the purchaser of a ladder fell 13 feet to his death, his estate brought overlapping design defect and negligence claims against the manufacturer, alleging it designed, manufactured, and distributed the dangerous ladder and failed to use reasonable care to ensure the ladder was safe before sale. At trial, there was no independent evidence of negligence apart from the design defect. The jury returned a verdict finding that the ladder was not defective, but contradictorily that the defendant's negligence contributed to the purchaser's death. The court held the verdict was inconsistent because the two findings were mutually exclusive. (5)

Though they are the most common, product liability verdicts are not the only ones susceptible to inconsistent findings. In Sunbank and Trust Co. of Brooksville v. Transcontinental Ins. Co., 666 So. 2d 198 (Fla. 5th DCA 1996), the victim in a check forging scheme sued the clearing bank for conversion after the bank accepted and deposited forged checks. At trial, the court instructed the jury on statutory provisions defining conversion, which explained that a depository bank is not liable if it acted in good faith. The jury returned a verdict irreconcilably finding that although the bank had converted the checks, it had acted in good faith. This error was deemed inconsistent, and the case was remanded for new trial.

It is best to recognize inconsistent verdicts at the outset. The law assumes that a timely objection can cure inconsistencies by giving the jury a chance to re-deliberate. Thus, an objection must be lodged before the jury is discharged or the error is waived. (6) By giving the court the opportunity to re-instruct the jury and send it back, the parties and the public avoid the cost and time of another trial. (7) When a party does not object before discharge, the law presumes the failure was tactical and deems the error waived. (8) Much to the dismay of many a litigant, the fundamental error exception affords no relief from a party's failure to object to an inconsistency. (9)

Unfortunately, under the shock of an unfavorable verdict, many attorneys may not recognize an inconsistency before it is too late. For that...