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Reporter’s Handbook – The Reporter’s Guide to a Civil Lawsuit

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The Reporter’s Guide to a Civil Lawsuit

by Susan Tillotson Bunch

How does a request for injunctive relief differ from a complaint for damages? What’s the difference between a motion to dismiss and a motion for summary judgment? How do the parties get each other to turn over important documents?

While many reporters are familiar with the general procedures applicable in criminal cases, they may be less familiar with civil proceedings. For example, unlike criminal defendants, civil litigants enjoy no constitutional speedy trial rights. As a result, civil proceedings may seem unduly lengthy, particularly in counties where the court dockets are especially congested. Courts try to speed up the process and encourage extra-judicial resolution of disputed claims, for example, through court-annexed mediation or arbitration.

This article is intended to offer a general introduction to, and overview of, the course of a “typical” civil lawsuit. Because of the vast array of actions that may be pursued in Florida courts, an exhaustive discussion of the rights, remedies, and procedures available is beyond the scope of this article. Moreover, this article will focus mainly on the pretrial proceedings, which tend to be more “mysterious” and less publicized than the actual trial. Indeed, pretrial proceedings can be a valuable source of newsworthy information. For example, information may come to light during pretrial proceedings that is not presented at trial for one reason or another, e.g., the information may be deemed unfairly prejudicial and, therefore, inadmissible.

I. The Pleadings

A. The Complaint
B. Answer
C. Responsive Motions
D. Counterclaims
E. Crossclaims and Third-Party Claims
F. Amendment

II. Pretrial Procedure

A. Discovery
B. Discovery Methods
C. Protective Orders
D. Sanctions

III. Dismissal

A. Voluntary Dismissal
B. Involuntary Dismissal
C. Summary Judgment

IV. Non-Judicial Methods of Resolution

A. Mediation
B. Arbitration
C. Offers of Judgment

V. Trial

A. Demand for Jury
B. Jury Selection
C. Opening Statements
D. Motion for Directed Verdict
E. Closing Argument
F. Jury Instructions
G. Verdict

VI. Conclusion

About the Author

I. The Pleadings.

The term “pleadings” often is used synonymously (and incorrectly) to refer to any documents filed with the court. However, this term has a more limited and technical meaning. The “pleadings” in a lawsuit are simply those filings that set forth either (a) the complaining party’s allegations and causes of action; or (b) the defending party’s responses to those allegations along with any defenses or causes of action the defending party may assert. This becomes significant only when the Florida Rules of Civil Procedure distinguish between “pleadings” and other documents. For example, a motion to dismiss for failure to state a cause of action is directed solely to the “pleadings” and the court may not consider any other filings, such as exhibits, deposition testimony, interrogatory answers, etc.

A. The Complaint.

A civil action is commenced by filing a complaint or petition. Fla. R. Civ. P. 1.050. This initial pleading filed by the complaining party generally consists of factual allegations, a description of the legal claims based on those allegations, and a request for relief. Fla. R. Civ. P. 1.110(b). Some pleadings are subject to special rules. For example, in actions alleging injury or death arising out of medical malpractice, the pleadings are required to include a certificate that counsel has conducted “a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” Fla. Stat. Sec. 766.104(1) (2014). “Good faith” may be demonstrated by a written expert opinion that there is evidence of medical negligence. Id. Failure to comply with this section may subject the party to an award of fees and costs. Id. These special pleading rules are in addition to the pre-suit notice requirements applicable to medical malpractice claims. See Fla. Stat. Sec. 766.106(2) (2014). Actions to foreclose on real estate must be “verified,” which means that the allegations of the complaint must be sworn under penalty of perjury. Fla. R. Civ. P. 1.110(b).

A lawsuit may involve one defendant, multiple defendants, or even a class of defendants. The procedures and requirements for certifying a class of plaintiffs or defendants are found in Fla. R. Civ. P. 1.220. Similarly, the lawsuit may involve multiple plaintiffs or a class of plaintiffs. A complaint may assert more than one count. It may state different causes of action, even if they are inconsistent. This common practice is called pleading “in the alternative.” Sometimes the conduct complained about may support more than one cause of action, depending on what discovery reveals. For example, Adam contracts to sell a piece of commercial real estate to Bob. Adam decides to accept a better offer from Charles. Bob brings a lawsuit against Adam after Adam reneges on their agreement. Bob may seek monetary damages because he will have to incur additional expenses in finding another suitable property. However, Bob also may sue in the alternative, for “specific performance,” which simply means that the original contract between Bob and Adam would be enforced and Adam would be required to sell the property to Bob, instead of paying Bob money damages.

Therefore, a party often does not have to choose initially which theory it will proceed on; however, the party ultimately can recover only once. Therefore, Bob cannot have both remedies and will have to choose which one he wants.

A party also may plead claims that are inconsistent with each other. As one court has noted, this is because “the pleadings in a cause are merely a tentative outline of the position which the pleader takes before the case is fully developed on the facts.” Hines v. Trager Constr. Co., 188 So. 2d 826, 831 (Fla. 1st DCA 1966), cert. denied, 194 So. 2d 618 (Fla. 1966). This rule applies equally to defendants. Therefore, a defendant may raise defenses that are inconsistent with each other.

The relief most commonly sought is money damages. Compensatory damages are intended to compensate the injured party for its loss. Punitive or exemplary damages are awarded beyond the actual loss and are intended to punish the wrongdoer and to deter similar conduct by others. The availability of punitive damages is limited by statute and court rule. See Fla. Stat. Sec. 768.72(1) (2014). This statute prevents a party from even including a claim for punitive damages in the complaint until that party has presented record evidence sufficient to support a jury verdict for punitive damages. This is important because the party seeking punitive damage is not entitled to the discovery of information concerning the other party’s financial net worth until the court is satisfied that a triable claim for punitive damages has been established. Id. In 2003, these requirements were incorporated into Fla. R. Civ. P. 1.190(f).

A party also may seek injunctive relief, i.e., an order by the court directing a party to do some act (positive) or to refrain from doing some act (negative). Once such an order is entered by a court, noncompliance with that order may be punishable as contempt of court.

One form of injunctive relief frequently requested is “specific performance,” which is essentially a direction to a party to perform its contract. Specific performance may be requested in land sales contracts and non-compete agreements. However, this remedy is not available to enforce certain types of contracts, such as personal service contracts.

A party also may seek declaratory relief. The trial courts have jurisdiction “to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” Fla. Stat. Sec. 86.011 (2014). This may include the interpretation and declaration of rights under a “statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing.” Fla. Stat. Sec. 86.021 (2014). The declaration may be affirmative or negative and “has the force and effect of a final judgment.” Fla. Stat. Sec. 86.011 (2014). For example, declaratory judgment proceedings frequently are initiated by insurance companies seeking a determination of their obligation to defend against another action.

B. Answer.

After being served with the initial pleading, the defendant (or respondent) must respond to it. A defendant has a couple of options at this stage.

Typically the defendant files an answer, which responds to each allegation of the complaint and which may set forth one or more defenses. Fla. R. Civ. P. 1.110(c). Under the rules of civil procedure, “affirmative defenses” must be asserted in a responsive pleading or motion to dismiss or they will be waived. Fla. R. Civ. P. 1.110(d).

Affirmative defenses are those defenses that “avoid” rather than deny. For example, the statute of limitations is an affirmative defense. By raising this defense, the defendant asserts that even if the defendant committed all of the horrible acts alleged by the plaintiff, the plaintiff has no cause of action because the action was not filed in a timely fashion. In that respect the claim is “avoided,” rather than denied.

C. Responsive Motions.

In lieu of, or in addition to, filing an answer, the defendant may move to challenge the legal sufficiency of the claims raised by the plaintiff. Fla. R. Civ. P. 1.140. These rules apply equally to counterclaims, crossclaims, and third-party claims. This motion is not a “pleading.” The defendant may argue that the complaint fails “to state a cause of action,” that is, even assuming that the facts alleged in the complaint are true, the law does not recognize a cause of action. Fla. R. Civ. P. 1.140(b)(6). For example, a store patron sues the grocery store for damages after he is assaulted by a third person in the vacant lot next door. The grocery store will move to dismiss, claiming that the store patron has failed to state a cause of action because it has no duty to protect customers off the premises.

An out-of-state defendant might argue that the court lacks “personal jurisdiction” over him or her, Fla. R. Civ. P. 1.140(b)(2), because he or she lacks sufficient “contacts” with the state, such as an office or business transactions in the state. This is based on the federal due process clause. Before a court may exercise personal jurisdiction over a nonresident defendant, that defendant must possess “certain minimum contacts with the state” so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’.” Walt Disney Co. v. Nelson, 677 So. 2d 400, 402 (Fla. 5th DCA 1996) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Other defenses that might be raised at this stage include:

  • Failure to join an indispensable party. See Fla. R. Civ. P. 1.140(b)(7).
  • Lack of subject matter jurisdiction. See Fla. R. Civ. P. 1.140(b)(1). Subject matter jurisdiction refers to the court’s authority to preside over certain matters. For example, by statute, circuit courts lack subject matter jurisdiction to hear matters involving amounts less than $15,000.00. The subject matter for such actions is vested in the county courts. See Fla. Stat. Sec. 34.01(1)(c) (2014).
  • Improper venue. See Fla. R. Civ. P. 1.140(b)(3). Venue is governed by Fla. Stat. Ch. 47 (2014), except where the Legislature has provided for special venue rules. See, e.g., Fla. Stat. Sec. 770.05 (2014) (limiting choice of venue in actions involving “libel or slander, invasion of privacy, or any other tort founded upon any single publication, exhibition, or utterance …”).
  • Insufficiency of process. See Fla. R. Civ. P. 1.140(b)(4). “Insufficiency of process” refers to the actual document which is served. To determine if the process is adequate, one should examine it to determine that it is signed by a clerk of court or the clerk’s deputy, it bears the clerk’s seal, a correct caption, the defendant’s correct name, the name of the appropriate state, the return date, the name and address of the party or lawyer causing process to be issued, and the name of any defendant organization. If it is not a summons, it should comply with the statute or rule that authorizes its issuance. See H. Trawick, Florida Practice & Procedure Sec. 8-3 (2012).
  • Defective service of process. See Fla. R. Civ. P. 1.140(b)(5). A defect in the “service of process” claims that the defendant was not served appropriately: for example, he or she was not served personally, when required. Service of process is governed by Fla. R. Civ. P. 1.070 and by Fla. Stat. Chs. 48, 49 (2014).

Certain defenses are waived if not raised either by an answer (or other responsive pleading) or by motion to dismiss, such as personal jurisdiction, improper venue, and insufficiency of process or service of process. Fla. R. Civ. P. 1.140(h)(1).

A defendant also may move for “a more definite statement” if the pleading is so vague or ambiguous that the defendant cannot frame a sufficient response to it, Fla. R. Civ. P. 1.140(e), or move to “strike” portions as “redundant, immaterial, impertinent, or scandalous matter.” Fla. R. Civ. P. 1.140(f).

D. Counterclaims.

In addition to its responsive pleading, a defendant may file a counterclaim, which operates like a complaint, except that the defendant is now the counterclaim plaintiff. Fla. R. Civ. P. 1.170. Thus, a counterclaim sets out factual allegations, legal claims, and a request for relief, just like a complaint. Id. A counterclaim requires a response by the “counterclaim defendant,” who was the plaintiff in the initial complaint. See Fla. R. Civ. P. 1.100(b) and 1.110(c).

Counterclaims may be “compulsory” or “permissive.” Fla. R. Civ. P. 1.170(a), (b). A counterclaim is “compulsory” and, therefore, must be raised in the current action if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.” Fla. R. Civ. P. 1.170(a). On the other hand, a counterclaim is “permissive” if it does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Fla. R. Civ. P. 1.170(b). This designation determines whether the counterclaim must be raised at this time or whether the defendant/counterclaim plaintiff can bring a separate action on the counterclaim. Fla. R. Civ. P. 1.170(a), (b).

E. Crossclaims and Third-Party Claims.

A party may file a crossclaim against a co-party (usually another defendant), Fla. R. Civ. P. 1.170(g), or may file a third-party complaint against a nonparty. Fla. R. Civ. P. 1.170(h). Crossclaims and third-party claims include factual allegations, legal claims, and requests for relief. They also require a response by the crossclaim or third-party defendants. Fla. R. Civ. P. 1.100(b)-(c). In practice, the pleadings can become quite complicated because of the number of possible claims that may be asserted. For example, a crossclaim defendant can assert a counterclaim against the crossclaim plaintiff and can assert a third-party claim against other nonparties. Multiple plaintiffs who are subject to a counterclaim can assert crossclaims against each other or third-party claims against other nonparties. There may be fourth party complaints. Understanding the availability of crossclaims, counterclaims and third-party claims to various parties can help you decipher a lengthy caption identifying one party as a defendant, a counterclaim plaintiff, a crossclaim defendant, and a third-party plaintiff, all at the same time.

F. Amendment.

A party may amend the pleading once as a matter of right if there has been no responsive pleading. Otherwise, a party must have either leave of court or written consent by the other side. Fla. R. Civ. P. 1.190(a). Leave of court is “given freely when justice so requires.” Id. Frequently a party will amend the pleading to cure any deficiencies addressed by a motion to dismiss. Amendments may be allowed even after trial under certain circumstances. Fla. R. Civ. P. 1.190(b).

II. Pretrial Procedure.

After responsive pleadings or motions are due, the court may schedule a case management conference to expedite and streamline litigation, for example, by scheduling service of papers, coordinating complex litigation, addressing discovery issues, pretrial motions and settlement issues, requiring the parties to file stipulations, etc. Fla. R. Civ. P. 1.200(a).

Once the case is “at issue,” the court may schedule a pretrial conference to address simplification of issues, amendments, admissions by one party, limitations on experts, and other pretrial “housekeeping” matters as trial approaches. Fla. R. Civ. P. 1.200(b). The failure of a party or its attorney to cooperate in these conferences may result in sanctions. Fla. R. Civ. P. 1.200(c).

A. Discovery.

Discovery occupies a large part of most civil lawsuits because Florida courts do not favor trial “by ambush.” Therefore, the rules of civil procedure encourage, indeed mandate, complete discovery. In practice, however, discovery disputes occupy a large amount of attorney and judge time.

Generally, discovery is allowed of “any matter, not privileged, that is relevant to the subject matter of the pending action ….” Fla. R. Civ. P. 1.280(b)(1). In this context, “relevance” has a very broad meaning. Information is discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

The goals of discovery are several. Each party desires to know what the other party intends to present at trial so as to avoid any nasty surprises. Each party also seeks to obtain evidence either to support its claims and/or defenses or rebut the opposing party’s claims and/or defenses, whether directly or through impeachment. Discovery permits a party to obtain information concerning what documents the other side intends to introduce, what that party’s experts and other witnesses will say and how that party intends to prove its claims and/or defenses. In cases in which punitive damages legitimately have been sought, the plaintiff may obtain financial worth information from the alleged wrongdoer. However, keep in mind that punitive damages only may be requested with prior permission of the court. See Fla. Stat. Sec. 768.72(1) (2014); Fla. R. Civ. P. 1.190(f).

While discovery is very broad, it is not without limitation. Remember that discovery is generally allowed of any relevant matter that is “not privileged.”  Fla. R. Civ. P. 1.280(b)(1). A number of privileges are recognized in Florida.  Examples of evidentiary privileges recognized by statute include journalist’s privilege, Fla. Stat. Sec. 90.5015 (2014), attorney-client communications, Fla. Stat. Sec. 90.502 (2014), fiduciary-lawyer-client communications, Fla. Stat. Sec. 90.5021 (2014), psychotherapist-patient communications, Fla. Stat. Sec. 90.503 (2014), sexual assault counselor-victim communications, Fla. Stat. Sec. 90.5035 (2014), domestic violence advocate-victim communications, Fla. Stat. Sec. 90.5036 (2014), husband-wife communications, Fla. Stat. Sec. 90.504 (2014), communications to clergy, Fla. Stat. Sec. 90.505 (2014), accountant-client communications, Fla. Stat. Sec. 90.5055 (2014), and trade secrets, Fla. Stat. Sec. 90.506 (2014).

The rules also restrict a party’s ability to obtain documents and tangible things prepared “in anticipation of litigation” by the other side. Fla. R. Civ. P. 1.280(b)(4). This is also known as the “work-product” privilege. The rules severely limit a party’s ability to discover information concerning experts who have been retained by the other side in anticipation of litigation but who are not expected to testify at trial. Fla. R. Civ. P. 1.280(b)(5)(B).

B. Discovery Methods.

There are several mechanisms for obtaining discovery. To a large extent, the type of discovery method employed and its timing depend on the information desired and the particular style of the legal practitioner.

1. Depositions.

A “deposition” is an oral examination of a person under oath that is recorded by a stenographer and may be videotaped or audiotaped. Fla. R. Civ. P. 1.310. A party deponent may be required to produce documents during the examination. Fla. R. Civ. P. 1.310(b)(5). Depositions of parties may be used by the other side for any purpose. Fla. R. Civ. P. 1.330(a)(2). Depositions may be taken by telephone. Fla. R. Civ. P. 1.310(b)(7). Depositions frequently are used to impeach subsequent testimony. Sometimes, depositions may be taken prior to the filing of a civil action or during appeal to preserve testimony. Fla. R. Civ. P. 1.290. Depositions may or may not be transcribed, depending upon the wishes of the parties. Depositions also may be conducted on written questions. See Fla. R. Civ. P. 1.320. This method is not used frequently.

2. Interrogatories.

“Interrogatories,” another common discovery method, are written questions that are served on a party, who then must respond in writing within thirty (30) days. See Fla. R. Civ. P. 1.340(a). Although the rules allow for any person to be deposed, interrogatories for admission may be directed only to parties. See Fla. R. Civ. P. 1.340(a) (“any party may serve upon any other party written interrogatories”).

The rules limit the number of interrogatory questions to thirty (30) without court approval. Fla. R. Civ. P. 1.340(a). Form interrogatories pre-approved by the Florida Supreme Court must be used if applicable. Id. Interrogatories must be answered separately, fully, in writing, and under oath unless objections are made. Id. Any objections must be stated and signed by the attorney. Id. Like deposition testimony, interrogatory answers frequently are used to impeach subsequent testimony.

A party may produce records in lieu of answering an interrogatory if the answer may be derived from those records (including electronically stored information) and if it is equally burdensome for the party to determine the answer as it is for the party seeking the information. Fla. R. Civ. P. 1.340(c). If electronically stored information is produced, the records must be produced “in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms.” Id.

3. Production of Documents and Things by Parties.

A party may be required to produce documents or other tangible things for inspection and/or copying by the other side. Fla. R. Civ. P. 1.350(a). “[D]ocuments” are defined broadly to include “electronically stored information, writings, drawings, graphs, charts, photographs, phono-records, and other ‘data compilations’ from which information ‘can be obtained, translated, if necessary, by the party to whom the request is directed through detection devices into reasonably usable form’.” See Fla. R. Civ. P. 1.350(a)(1). The party seeking the information may inspect and copy, test, or sample any tangible items falling within the scope of discoverable material. Fla. R. Civ. P. 1.350(a)(2). A party may request to enter upon designated land or property to inspect and measure, survey, photograph, test or sample the otherwise discoverable property or any designated object or operation on the property. Fla. R. Civ. P. 1.350(a)(3).

4. Production of Documents and Things by Nonparties.

A party also may obtain documents from nonparties by issuing a subpoena directing production of documents or things without deposition. See Fla. R. Civ. P. 1.351(a). Other parties must be notified at least ten (10) days before the subpoena issues so that they may object. Fla. R. Civ. P. 1.351(b). If another party objects, no documents are produced until the objection is resolved and the party seeking discovery can file a motion to have the court rule on the objection. Fla. R. Civ. P. 1.351(b), (d). However, after the subpoena is served, if the nonparty witness objects, this method of nonparty discovery simply becomes unavailable and no hearing is available on that objection. Instead, the party seeking discovery must subpoena the nonparty for deposition. Fla. R. Civ. P. 1.351(c). Non-party objections under this rule are “self-executing.” See Patrowicz v. Wolff, 110 So. 3d 973 (Fla. 2d DCA 2013).

5. Mental and Physical Examinations.

In certain circumstances, a party may request that a qualified expert conduct a physical or mental examination of a party, or a person in that party’s control or custody. Fla. R. Civ. P. 1.360(a). This discovery method is utilized often in personal injury and worker’s compensation cases and otherwise when a person’s physical or mental condition is in controversy. The party requesting the examination must have good cause. Fla. R. Civ. P. 1.360(a)(2).

6. Request for Admissions.

An important, but often under-utilized, form of discovery are the “requests for admission.” Fla. R. Civ. P. 1.370. Like interrogatories, requests for admission may only be directed to parties to the action. See Fla. R. Civ. P. 1.370(a). One party serves upon another party a written request that the party admit to the truth of certain matters, including statements or opinions of fact or the application of law to fact, or the genuineness of documents. Fla. R. Civ. P. 1.370(a). If the other side fails to respond or object within thirty (30) days, the facts are considered admitted, which means that they are conclusively established unless the court permits otherwise. Fla. R. Civ. P. 1.370(a), (b). The requesting party also may move to determine the sufficiency of the responses. Fla. R. Civ. P. 1.370(a). If the court decides that a response does not comply with the rule, the matter may be deemed admitted or an amended answer required. Id. If a party fails to admit a matter and the other side later proves that matter, the party may have to pay the costs incurred by the other side in making that proof. Id. The parties may serve no more than thirty (30) requests for admissions without court permission. Fla. R. Civ. P. 1.370(a).

C. Protective Orders.

At any time, a party or nonparty from whom discovery is sought may ask the court to enter a protective order to protect that person from “annoyance, embarrassment, oppression, or undue burden or expense that justice requires ….” Fla. R. Civ. P. 1.280(c). Such a protective order may prohibit discovery, limit its scope, or effectuate other protective measures. Id.

D. Sanctions.

A party may seek an order compelling discovery from another party or nonparty who has failed to adequately respond to discovery requests. Fla. R. Civ. P. 1.380(a). Such a motion must include a “good faith certificate” that the moving party attempted to resolve the matter in good faith and without court action. Fla. R. Civ. P. 1.380(a)(2). If a motion to compel is granted, the court “shall require” the party or deponent whose conduct necessitated the motion, or the party or attorney advising the conduct, to pay the moving party’s expenses incurred in obtaining the order, which may include reasonable attorney’s fees, unless the court decides that the moving party failed to certify in the motion that good faith efforts were made to resolve the dispute, or that the opposition to the motion was “substantially justified,” or “that other circumstances make an award of expenses unjust.” Fla. R. Civ. P. 1.380(a)(4). Similarly, if the motion is denied, the moving party shall pay the opposition’s expenses unless the motion was substantially justified or other circumstances make an award of expenses unjust. Id. Despite the mandatory language, practitioners often find it very difficult to successfully seek fees even if the face of blatantly and unjustifiably uncooperative conduct.

If the court orders discovery, failure to obey that order may be punishable as contempt. Fla. R. Civ. P. 1.380(b). The court has many available sanctions for discovery violations, particularly when the recalcitrant person is a party. Certain matters may be deemed established or a party may be prevented from opposing or supporting claims or defenses or from introducing evidence. Fla. R. Civ. P. 1.380(b)(2) (A), (B). The court may strike pleadings, dismiss the action, or enter a default judgment. Fla. R. Civ. P. 1.380(b)(2) (C), (D). However, the failure to submit to a physical or mental examination is not punishable by contempt, although it still may result in sanctions. Fla. R. Civ. P. 1.380(b)(2)(D), (E).

III. Dismissal.

Frequently, civil actions are dismissed before a trial on the merits of the underlying claims. In addition to settlement, dismissal of a civil action may come about under a number of circumstances.

A. Voluntary Dismissal.

A party’s ability to dismiss its own action is limited by the rules of civil procedure. Fla. R. Civ. P. 1.420(a). The dismissal rules also apply to counterclaims, crossclaims, and third-party claims. Fla. R. Civ. P. 1.420(c). A party may dismiss its lawsuit voluntarily without a court order prior to trial, as long as no motion for summary judgment has been heard or one has been denied and the case has not been submitted to the fact-finder. Fla. R. Civ. P. 1.420(a)(1)(A). An action may be dismissed by stipulation of all current parties. Fla. R. Civ. P. 1.420(a)(1)(B). If the plaintiff previously has dismissed “an action based on or including the same claim[,]” this second dismissal will operate as an adjudication on the merits and the plaintiff will not be permitted to refile the action. Fla. R. Civ. P. 1.420(a)(1). Otherwise, the plaintiff may be able to refile the action, although he or she may be required to pay costs before bringing a similar action against the same party. Fla. R. Civ. P. 1.420(d).

B. Involuntary Dismissal.

On motion by a party, the court may enter an order of dismissal or all or part of the other party’s claims against the movant as a sanction for failure to comply with court rules or orders. Fla. R. Civ. P. 1.420(b). In evaluating whether the compliance merits this drastic sanction, the court considers the intent of the noncompliant party, the existence of previous sanctions, the involvement of the client, the degree of prejudice to the other side, and any justification for noncompliance. See H. Trawick, Florida Practice & Procedure Sec. 21-5 (2012).

If a case is tried to the court (i.e., without a jury), a party may seek involuntary dismissal if the other side, after completing its presentation of evidence, has failed to show a right to relief. Fla. R. Civ. P. 1.420(b).

In contrast to voluntary dismissal under Rule 1.420(d), unless the order states that the dismissal is without prejudice, an involuntary dismissal under Rule 1.420(b) is an adjudication on the merits and precludes that party from refiling the dismissed action. Fla. R. Civ. P. 1.420(b). See also Drady v. Hillsborough County Aviation Auth., 193 So. 2d 201 (Fla. 2d DCA  1966), cert. denied, 210 So. 2d 223 (Fla. 1968).

C. Failure to Prosecute

If there has been no record activity for ten (10) months and no order staying the proceedings, any interested person (whether or not a party to the case), the court, or the clerk of court may serve notice of such lack of record activity. If no record activity occurs, or a stay approved, within the next 60 days following service, the court shall dismiss the action unless a party can show good cause. Fla. R. Civ. P. 1.420(e). The predecessor version of this rule was more severe in application and strict in its enforcement and, as a result, appellate decisions spent a considerable amount of time analyzing what qualified as “record activity.” With the adoption of the 60 day “savings period” above, dismissal under this rule is far less frequent.

D. Summary Judgment.

After the lawsuit has been filed, either party may move for summary judgment, subject to certain time restrictions. Fla. R. Civ. P. 1.510. Unlike a motion to dismiss, a motion for summary judgment can do more than challenge the legal sufficiency of the claim for relief, and can also attack the factual support for claim, but only successfully if there is nothing that otherwise would be an issue for the jury (or other factfinder).

A summary judgment motion may be directed to any pleading, including the complaint, counterclaim, crossclaim, etc. Fla. R. Civ. P. 1.510(a). To win summary judgment, the moving party must demonstrate conclusively that the nonmoving party cannot present evidence that would be sufficient to demonstrate a “genuine issue as to any material fact” and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The trial court “must draw every possible inference in favor of the [nonmoving] party.” Willis v. Gami Golden Glades, LLC, 967 So. 2d  846, 848 (Fla. 2007). A party may move for partial summary judgment; for example, plaintiff could move for summary judgment on liability only, leaving the amount of damages to be determined by a jury.

A motion for summary judgment may be supported or opposed by affidavits, so long as they are made on personal knowledge and set forth admissible facts. Fla. R. Civ. P. 1.510(a), (b), (e). The parties also may rely upon depositions and answers to interrogatories. Fla. R. Civ. P. 1.510(e). However, in evaluating a motion for summary judgment, a trial judge may not weigh evidence or assess credibility. Those issues are reserved for the factfinder.

Likewise, the factfinder is responsible for resolving factual disputes, and therefore, if the court finds the material facts to be genuinely disputed, summary judgment is not appropriate. If there are no disputed facts, only legal questions remain, and the court, not the fact-finder, is solely responsible for resolving questions of law. In other words, “[w]hen a [party] moves for summary judgment, the court is not called upon to determine whether the [other party] can actually prove his cause of action. Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, the nonexistence of a genuine issue of a material fact. If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.” MacClatchey v. HCA Health Servs. of Fla., ___ So. 3d ___ (Fla. 4th DCA 2014) (Text available on WESTLAW at 2104 W.L.2588252). It is often said that merely a “scintilla” of appreciable evidence will defeat a motion for summary judgment.

However, to prevent summary judgment, the disputed fact must be “material.”  In other words, the disputed facts must be relevant to the issues under consideration so as to potentially impact the outcome under the governing law. In addition, the dispute must be “genuine.” For example, attempting to refute factual issues by asserting legal arguments or mere denials in the form of legal conclusions, but without citing record evidence, will not create a “genuine” dispute.

Appellate courts scrutinize orders granting summary judgment very closely and under the “de novo” standard, meaning that they do not give the trial judge any deference. Consequently, such orders frequently are overturned. This increased potential for reversal in turn explains the great reluctance on the part of trial judges to grant summary judgment if there is even a “scintilla” of evidence. However, some matters are more suited for summary judgment, for example, defamation cases against public figures, because of the important First Amendment rights at issue.

IV. Non-Judicial Methods of Resolution.

The parties may resolve a case before trial with the assistance of one of several available (and often mandatory) “alternative dispute resolution” techniques.

A. Mediation.

Mediation is “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement.” Fla. Stat. Sec. 44.1011(2) (2014). The parties may mediate a case, whether by order of the court or by agreement of the parties. Fla. R. Civ. P. 1.700(a). However, mediation of certain actions is not permitted, even if the parties agree, including bond estreatures, habeas corpus and extraordinary writs, bond validations, criminal or civil contempt proceedings, and any other matters specified by the chief judge of that court. Fla. R. Civ. P. 1.710(b)(1)-(5). Failure to attend mediation without good cause may result in sanctions. Fla. R. Civ. P. 1.720(f). Mediation does not suspend the discovery process. Fla. R. Civ. P. 1.710(c).

The court may appoint the mediator from a list of Florida Supreme Court-certified mediators. Fla. Stat. Sec. 44.102(4) (2014). When possible, courts should appoint qualified volunteer mediators. Fla. Stat. Sec. 44.102(4)(a) (2014). The parties also may choose the mediator and will often agree on a particular mediator with specialized knowledge or expertise in the relevant area. The mediator controls the mediation process. Fla. R. Civ. P. 1.720(h). Counsel are permitted to communicate privately with their clients. Id. If the parties and mediator agree, mediation can proceed without counsel. Id. The mediator can meet privately (or “caucus”) with any of the parties or their counsel. Fla. R. Civ. P. 1.720(i).

The mediator often bounces between parties in separate rooms, attempting to resolve the case by communicating each side’s respective arguments as well as the mediator’s opinion on the practical realities of a potential trial. Such subtle arm-twisting is often referred to as “shuttle diplomacy” and, when employed by a skilled mediator, can be very effective at bringing the realities of the case into objective focus for even the most stubborn parties (and sometimes, more importantly, their attorneys). The mediation process is both more flexible and less formal than judicial proceedings; however, the structure, atmosphere and conduct of mediation vary considerably among mediators, reflecting different approaches to the same ultimate goal. It is sometimes said that the hallmark of successful mediation is an outcome in which both parties are “equally dissatisfied.” Nevertheless, a mediated settlement crafted by both parties is often a very attractive alternative to the uncertainty of entrusting the outcome to a jury.

If mediation does not result in an agreement, the mediator reports the lack of agreement, i.e., the “impasse,” to the court “without comment or recommendation.” Fla. R. Civ. P. 1.730(a). However, if the parties agree, the mediator may identify pending motions or outstanding legal issues, discovery process or other actions by either party whose resolution may improve the likelihood of settlement. Id. If an agreement is reached, whether in whole or in part, it is reduced to writing and signed by the parties and their counsel. Fla. R. Civ. P. 1.730(b). Like an “impasse,” the mediator reports the existence of the agreement to the court “without comment.” Id. Once so executed, the settlement agreement may be enforced with sanctions, including costs, attorney’s fees or event entry of judgment. Fla. R. Civ. P. 1.730(c).

In order to encourage candor in settlement discussions, mediation proceedings are privileged, subject to limited exceptions. See Fla. Stat. Sec. 44.405(1) (2014). In 2004, the Florida Legislature enacted the Mediation Confidentiality and Privilege Act, Florida Statutes, under which a breaching party may be subject to a claim for civil damages, attorney’s fees and injunctive relief, among other consequences. See, e.g., Fla. Stat. Sec. 44.406(1) (2014). All written communications in court-ordered mediation, other than the executed settlement agreement, are also exempt from Florida’s Public Records Act. See Fla. Stat. Sec. 44.102(3) (2014).

B. Arbitration.

The goal of mediation is to reach a settlement that is crafted by agreement of the parties with the assistance of a neutral mediator.  By contrast, in arbitration, the parties present abbreviated versions of their respective cases to an arbitration panel (which may consist of one or more arbitrators) that will render a decision on the merits of the case. Court-ordered arbitration may be mandatory and non-binding, Fla. Stat. Sec. 44.103(1) (2014), or voluntary and binding. Fla. Stat. Sec. 44.104 (2014). Courts also will order arbitration pursuant to contractual arbitration clauses. See Fla. Stat. Sec. 44.104(2) (2014); Fla. Stat. Sec. 682.02 (2014). However, disputes involving child custody, visitation, or child support, or the rights of a nonparty to the arbitration are non-arbitrable. See Fla. Stat. Sec. 44.104(14) (2014).

1. Mandatory (Non-Binding) Arbitration.

Mandatory (non-binding) arbitration results in a written decision by the arbitration panel that will become final unless a party timely requests a trial “de novo.” Fla. Stat. Sec. 44.103(5) (2014). However, the requesting party risks being required to pay costs, including attorney’s fees, if the trial result is not more favorable to that the arbitration award. See Fla. Stat. Sec. 44.103(6) (2014).

Courts may order medical malpractice actions to non-binding arbitration before an arbitration panel comprised of a plaintiff’s attorney, a health care practitioner or defense attorney, and a trial attorney. See Fla. Stat. Sec. 766.107(2)(a) (2014). The panel considers the evidence and decides the issues of liability, amount of damages, and apportionment of responsibility among the parties, but may not award punitive damages. Fla. Stat. Sec. 766.107(3)(b) (2014).

2. Voluntary (Binding) Arbitration.

The parties may agree in writing to voluntary (binding) arbitration, except when constitutional issues are involved. Voluntary (binding) arbitration is also available in medical malpractice actions. See Fla. Stat. Sec. 766.207 (2014). The Florida Rules of Evidence apply to voluntary (binding) arbitration proceedings. Fla. Stat. Sec. 44.104(9) (2014). Appeals to the circuit court are limited to statutorily defined issues, such as failure of the arbitrators to comply with procedural or evidentiary rules, misconduct, and unconstitutionality of the decision. Fla. Stat. Sec. 44.104(10) (2014).

3. Arbitration Procedure

Either the parties or the court may select one or more arbitrators. Fla. Stat. Sec. 44.104(2) (2014). Procedurally, arbitration is akin to a “mini-trial.” Arbitrators can subpoena and swear witnesses, take testimony, and request court orders compelling attendance and production. See Fla. Stat. Sec. 44.103(4) (2014); Fla. Stat. Sec. 44.104(7) (2014). Nevertheless, arbitration is considerably less formal and is often a more efficient process of dispute resolution. When a panel of arbitrators is used, a majority can render a decision. See Fla. Stat. Sec. 44.104(8) (2014).

C. Offers of Judgment & Demands for Judgment.

A party also may submit a written “offer of judgment” or “demand for judgment” that offers to settle a claim on specific terms, e.g., for a specified dollar amount, etc. See Fla. Stat. Sec. 768.79(1) (2014). An offer or demand may be withdrawn in writing at any time prior to its acceptance. See Fla. Stat. Sec. 768.79(5) (2014). The recipient has thirty (30) days to accept the offer in writing. Again, the decision is not without risk. A rejecting plaintiff who ultimately does not obtain of at least seventy-five percent (75%) of the offer will be responsible for the offering defendant’s costs and fees. See Fla. Stat. Sec. 768.79(6)(a) (2014). Likewise, a rejecting defendant will be responsible for the costs and fees of an offering plaintiff who ultimately obtains a judgment that at least twenty-five percent (25%) greater than the offer. See Fla. Stat. Sec. 768.79(6)(b) (2014). In both situations, the fees and costs are calculated from the date the offer was served. See Fla. Stat. Sec. 768.79(6)(a), (b) (2014). Given the potential liability for additional fees and costs, offers and demands for judgment provide powerful incentive to consider settlement offers thoughtfully and seriously.

A party who “unreasonably” rejects an offer of settlement, as subsequently determined by the court, may be required to pay costs and fees under a separate provision. See Fla. Stat. Sec. 45.061 (2014) (compare Section 768.79(6), under which the award is mandatory). However, this section is virtually obsolete, because it does not apply to causes of action that accrue after October 1, 1990. Id.

V. Trial.

Although the majority of civil cases are resolved without a trial, many still proceed to trial. Once all motions directed to the last “pleading” (except for crossclaims) have been resolved or, absent any such motions, within twenty (20) days of the service of the last pleading, an action is “at issue,” and a party may notify the court that it is ready to be set for trial. Fla. R. Civ. P. 1.440(a), (b). If the parties have not mediated the case, the court may order mediation. Otherwise, if the court concludes that the case is ready for trial, a trial date shall be scheduled at least thirty (30) days out. Fla. R. Civ. P. 1.440(c).

A. Demand for Jury.

The Florida Constitution provides that the right to a jury trial shall be “secure to all and remain inviolable.” Fla. Const. Art. I, Sec. 2. See also Fla. R. Civ. P. 1.430(a) (preserving right to jury trial as declared by the constitution or statute). Despite this language the right to a jury trial in a civil case is not absolute. For example, this right only applies to those issues that were triable before a jury by common law when the first Florida Constitution was adopted and “to proceedings of like nature” under the rules of common law. These include actions in contract, civil theft, defamation, intentional and negligent torts, including professional and products liability, and replevin or trover.

In addition, the right to a jury trial is provided by statute in a number of additional cases, such as those involving ejectment from lands, Fla. Stat. Sec. 66.061 (2014), forcible entry and unlawful detainer, Fla. Stat. Sec. 82.071 (2014), compensation amount for “inordinate burdens” on property rights, Fla. Stat. Sec. 70.001(6) (2014), certain actions to “quiet title”, Fla. Stat. Sec. 65.081(2) (2014), lien claims in eminent domain proceedings, Fla. Stat. Sec. 73.051 (2014), compensation amount in eminent domain, Fla. Stat. Sec. 73.071 (2014), writ garnishment proceedings, Fla. Stat. Sec. 77.08 (2014), and third party claims to garnished property, Fla. Stat. Sec. 77.16 (2014).

There is no right to a jury trial in a variety of other cases, including cases seeking equitable relief (such as injunctions and mandamus), dissolution of marriage (also considered equitable), probate, guardianship, civil commitment, admiralty, court-martial, disbarment, medical license revocation, partition of real property, and fraudulent conveyances.

Typically, the demand for a jury trial is appended to the plaintiff’s complaint. A plaintiff may choose, however, for strategic purposes or otherwise, not to assert its jury trial right. However, both parties enjoy the right to a jury trial, see Fla. R. Civ. P. 1.430(a); Fla. Const. Art. I, Sec. 2, and a defendant who desires a jury trial typically will demand one in its answer or other responsive pleading. Procedurally, a demand for jury trial must be made no later than ten (10) days after service of the “pleading” to which the demand relates. Fla. R. Civ. P. 1.430(b).  If a jury trial is not properly and timely demanded, it is deemed waived. Fla. R. Civ. P. 1.430(d). Once a jury trial demand is made, it cannot be withdrawn without consent of the parties. Id. A matter may be tried completely or partially to a jury. Fla. R. Civ. P. 1.430(c). A party can limit its jury demand to certain issues; again, however, the other party may essentially “overrule” that limitation by making a timely and less limited jury trial demand. A jury demand that does not specify the claims to be tried to a jury is deemed to demand a jury trial for all issues that are triable to a jury. Id.

B. Jury Selection.

Prior to the start of a jury trial process, the court and parties must select the jury. After selection but before being placed in the jury box, prospective jurors may be provided with a questionnaire to determine any legal disqualifications. Fla. R. Civ. P. 1.431(a)(1). For example, convicted felons, the Governor, Lieutenant Governor, Cabinet officers, clerks of court, and judges are disqualified from jury service. See Fla. Stat. Sec. 40.013(1), (2)(a) (2014). Other individuals are excused upon request, including law enforcement officers and investigators, expectant mothers, non-full-time employed single parents of children under six years old, practicing attorneys and physicians, individuals over seventy (70) years old, individuals who are physically or can demonstrate hardship, extreme inconvenience, or public necessity, and certain caregivers.  See Fla. Stat. Sec. 40.013 (2014).

A second questionnaire may be furnished to the prospective jurors, which may be used by the parties to assist in voir dire, which refers to the oral examination of prospective jurors. Fla. R. Civ. P. 1.431(a)(2). These completed forms may be inspected in the clerk’s office. Id.  The parties have the right to examine jurors orally on voir dire. Fla. R. Civ. P. 1.431(b). The court also may question prospective jurors. Id.

By motion, a party may challenge any prospective juror “for cause” if: (a) the juror is related to a party, a party’s attorney, or any other person who is allegedly liable for or injured by the asserted underlying conduct, (b) the juror has some interest in the action, (c) the juror has formed or expressed any opinion or bias or has prejudged the case, or (d) the juror is employed by any entity allegedly liable for damages. Fla. R. Civ. P. 1.431(c)(1). A juror who lacks knowledge of reading, writing and/or arithmetic that is required to understand the evidence, may be challenged for cause. Fla. R. Civ. P. 1.431(c)(3). The court must examine a challenged juror under oath to decide whether the juror should be excused or is otherwise incompetent and if so, that juror will be replaced.

There is no limit to the number of challenges for cause that may be raised. On the other hand, a party generally is limited to three (3) “peremptory” challenges, which do not require that the party establish “cause,” or any other reason for that matter. Fla. R. Civ. P. 1.431(d). However, there are constitutional limitations on peremptory challenges. For example, a party may not utilize its peremptory challenges to exclude prospective jurors in a racially discriminatory manner. See, e.g., State v. Johans, 613 So. 2d 1319, 1321 (Fla. 1993); State v. Neil, 457 So. 2d 481 (Fla. 1984); Laidler v. State, 627 So. 2d 1263 (Fla. 4th DCA 1993).

All challenges to jurors are to be addressed by the court outside the hearing of the jurors. See Fla. R. Civ. P. 1.431(e).

After the trial jury is selected, the court may provide for the selection of alternate jurors, and the parties generally are allowed one peremptory challenge for this process. Fla. R. Civ. P. 1.431(g). Alternate jurors are selected in the same manner as trial jurors, and are in all respects identical except that they are discharged if they are not needed, for example, to replace a “principal” juror who becomes unable or disqualified from performing his or her duties, when the jury retires to deliberate. Fla. R. Civ. P. 1.431(g)(1).

C. Opening Statements.

After a jury is selected, the parties present opening statements. Opening statements are not supposed to be arguments; rather, the parties should advise the jury of what the evidence will prove. After opening statements, the parties or the court may invoke “the rule,” a short-hand reference to the Rule of Sequestration, which means that nonparty witnesses generally are excluded from the courtroom while others are testifying. See Fla. Stat. Sec. 90.616 (2014). In addition, the witnesses are directed not to discuss the case with anyone other than the attorneys. H. Trawick, Florida Practice & Procedure Sec. 22-8 at 356 (2012).

D. Juror Communications.

During trial, all communications between judges and other courtroom personnel and jurors are required to be in open court or in writing and filed, subject to exceptions for certain “routine” communications between jurors and bailiffs regarding the juror comfort or safety. See Fla. R. Civ. P. 1.431(i)(1), (2). The court must notify the parties of all communications from jurors pertinent to the case as promptly as possible and before responding to such communications. See Fla. R. Civ. P. 1.431(i)(1). Jurors and courtroom are instructed on the rules restricting communications and courtroom personnel are required to notify the court immediately of any violations of these restrictions. See Fla. R. Civ. P. 1.431(i)(4).

Jurors are allowed to submit written questions directed to the witnesses or court. See Fla. R. Civ. P. 1.452(a). The questions are routed through the bailiff to the judge and read to the attorneys outside the presence of the jurors so that the attorneys may object if necessary. See Fla. R. Civ. P. 1.452(b), (c). Questions for a witness are then submitted to the witness after the parties have finished their examination of the witness. See Fla. R. Civ. P. 1.452(a).

E. Motion for Directed Verdict.

After either party presents its case-in-chief, the opposing party may move for a directed verdict on the grounds that the other party has failed to present sufficient evidence to justify submission of the case to the jury. Fla. R. Civ. P. 1.480(a). If the action is being tried to the court without a jury, the proper motion is a motion for involuntary dismissal under Fla. R. Civ. P. 1.420(b), as discussed earlier. If the motion is denied or reserved, the case proceeds, subject to the moving party’s ability to renew the motion at the close of the evidence. However, in a nonjury trial, renewal of the motion for involuntary dismissal at the close of the evidence is not authorized.

Orders granting directed verdict are unusual and scrutinized closely on appeal. Courts commonly “reserve ruling” on a motion for directed verdict and allow the case to proceed to the jury. This is a preferred approach because if the trial court grants a directed verdict and does not submit the case to the jury, and the directed verdict is overturned on appeal, the entire case must be retried. On the other hand, if the judge reserves ruling on the motion for directed verdict, then overrides a subsequent jury verdict, if that decision is overturned on appeal, the jury verdict may simply be reinstated without the necessity of a new trial.

After the plaintiff presents its case and any motions for directed verdict by either side are addressed, the defendant presents its case-in-chief. At the close of the defendant’s case, either party may move for a directed verdict. The plaintiff may present rebuttal evidence. The requirement that a party “renew” its previously made motion for directed verdict at the close of the evidence has been eliminated. See Fla. R. Civ. P. 1.480(b). Motions to set aside a verdict must be filed within fifteen (15) days. If there was no verdict, post-trial motions for relief must filed within fifteen (15) days after the jury was discharged. Such motions may be combined with a motion for new trial. Id.

F. Closing Argument.

After the close of all the evidence, each side has an opportunity to present closing arguments. Because the plaintiff bears the burden of proof, the plaintiff is permitted to argue first and last (i.e., in rebuttal to defendant’s argument). The attorneys are required to confine their closing arguments to the evidence presented, along with its reasonable inferences. Alford v. Barnett Nat’l Bank, 137 Fla. 564, 188 So. 322 (1939). Case law restricts the types of arguments that may be presented in closing argument. For example, an attorney may not express a personal belief in his client or his client’s case. Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. 3d DCA 1967). He may not request that the jury place itself in his client’s shoes, i.e., the so-called ‘Golden Rule’ argument. Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961).

G. Jury Instructions.

If the judge does not direct a verdict following the parties’ respective presentations, the case is submitted to a jury. Prior to the close of evidence, the parties must submit any requested jury instructions. Fla. R. Civ. P. 1.470(b). However, the Florida Supreme Court-approved form instructions must be used unless the trial court decides otherwise. Additional instructions may need to be drafted and often there will be great debate between the parties on their wording.

The judge instructs the jurors on the manner in which they are expected to deliberate and the law that they must follow. Finally, armed with copies of the written jury instructions, the jurors retire to deliberate. Id. Frequently, the jury has questions during the deliberation process. The parties and their attorneys are notified of such questions. There may be some discussion or debate on how such questions are to be answered and the attorneys may object on the record to the answers ultimately provided to the jury.

H. Verdict.

Once the jury’s deliberations are complete, the verdict is announced in open court. A verdict may be either a “general” verdict or a “special” verdict. A general verdict “finds for a party in general terms on all issues within the province of the jury to determine.” H. Trawick, Florida Practice & Procedure Sec. 24-2 (2012). On the other hand, a “special verdict” requires the jury to answer specific questions that determine the disputed facts. H. Trawick, Florida Practice & Procedure Sec. 24-3 at 400 (2012). For example, a special verdict form in a negligence action might require the jury to determine whether the defendant owed “a duty” to the plaintiff. If the answer to this question were negative, the court would enter judgment for the defendant because duty is an essential element of a negligence claim. A general verdict, on the other hand, might ask simply whether the jury’s verdict was for the plaintiff and, if so, for how much. Regardless of the verdict form used, a separate verdict on each count must be required if requested by either party. H. Trawick, Florida Practice & Procedure Sec. 24-2 at 399 (2012). The verdict form is completed and signed by the foreperson.

In negligence actions, the verdict must be itemized according to economic loss, noneconomic loss, and punitive damages (if awarded). Fla. Stat. Sec. 768.77(1) (2014). “Economic damages” refers to “past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.” Fla. Stat. Sec. 768.81(1)(b) (2014). Damages also must be categorized as past or future damages. Fla. Stat. Sec. 768.77(2) (2014). Only economic damages are reduced to present value. Id. Punitive damages must be stated separately from amounts of other damages. See Fla. R. Civ. P. 1.481.

After the verdict is read, either party may request that the individual jurors be “polled.” Each juror is asked then to confirm that the verdict read is his or her verdict. Once the requested polling is complete, the jury is discharged.

VI. Conclusion.

This article offers a general overview of the route of a civil lawsuit. Of course, every lawsuit is different and the steps often vary dramatically. Although access to various components of the pretrial process is beyond the scope of this article, pretrial proceedings can often be a valuable source of information. Hopefully, this article will help “demystify” the civil process and assist reporters in exploring this potentially valuable source of newsworthy information.


Susan Tillotson Bunch is a media lawyer with Thomas & LoCicero PL in Tampa. Ms. Bunch received both her law school and undergraduate degrees from Florida State University and has been a member of The Florida Bar since 1990. Prior to entering private practice, Ms. Bunch clerked for a federal judge in the Northern District of Florida. In addition to Florida, Ms. Bunch is admitted to practice before the United States Supreme Court, United States Courts of Appeals for the Sixth, Eleventh and Federal Circuits, and all federal district courts in Florida. In addition to media law, Ms. Bunch concentrates her practice in the areas of advertising law, promotions, emerging technologies, and general litigation.

Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.

[Revised: 8/1/2004]