Inconsistent, Inadequate, Unbalanced, and Compromised: Breaking Up with Flawed Verdicts
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 DCA 1968), 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 reason, it is best to ruminate over the verdict form ahead of time to consider the ways in which a jury might come to inconsistent conclusions. As noted above, careful consideration of the jury instruction committee notes may yield useful insight. By identifying potential issues before trial, a diligent attorney can avoid missing them at the end.
Some caselaw indicates that an objection to the verdict form at the charge conference suffices to preserve the error, but it is not advisable to depend on a pre-deliberation objection.[10] Finally, should the trial court, when faced with a proper objection, refuse to re-instruct the jury and send it back for re-deliberation, the error is per se harmful and warrants nearly automatic reversal.[11]
Inadequate Verdicts
Like a bad relationship, an inadequate verdict leaves the plaintiff’s needs unfulfilled. Inadequate verdicts are often confused with inconsistent ones. The difference, it seems, is that inconsistencies occur in the liability portion of the verdict whereas inadequacies are found in the damages section. More specifically, though, an inadequate verdict is one in which the damages awarded are less than the amount proven.[12] The most obvious example is an award for economic damages that are less than those established by stipulation or undisputed evidence.[13] But when the jury outright denies an award for one element of damages while simultaneously awarding money for a related category, how is that defined? The answer is that virtually any combination of damages that includes a zero verdict is considered an adequacy issue because, as explained succinctly by the Fourth District Court of Appeal, “[a] verdict is not necessarily inconsistent because it fails to award enough money, or perhaps no money at all” for some but not all elements.[14] Instead, “the issue is the adequacy of the award, not its consistency with any other award by the verdict.”[15]
The classic example of an inadequate verdict is when a jury awards past and/or future economic damages without any accompanying noneconomic damages.[16] But such a verdict does not necessarily warrant a new trial. Though it seems self-evidently irreconcilable, the law sees it differently.[17] The Fourth District recently summarized it as follows: “Awards of zero damages for future noneconomic damages are unreasonable only when undisputed evidence of permanent injury and a need for treatment in the future exist.”[18] Thus, an incomplete history coupled with preexisting pain or prior injury to the same body part can justify a zero verdict.[19] On the flip side, when there is an element of undisputed evidence of any damages, failure to award any amount for that element must be reversed.[20] Of course, credibility concerns or impeachment of an opposing party’s expert is all that is necessary to create a fact issue.[21]
Paradoxically, while an inconsistent verdict (which is typically harder to spot) must be challenged immediately, a challenge to an inadequate or zero verdict (which is patently obvious) can wait until the motion for new trial is filed 15 days later. It is then within the judge’s discretion to find the verdict inadequate and order a new trial, which is often limited to the specific item of damages. Inadequate economic damages awards may usually be dealt with through remittitur or additur, but noneconomic damages, due to their subjective nature, are more suitable for a new trial. On appeal, findings related to new trials, additurs, and remittiturs are rarely disturbed.
Compromise Verdicts
Compromise is an essential ingredient in any good relationship, but it’s frowned upon in deliberations. Compromise verdicts are a close cousin of inadequate ones, but while inadequate verdicts are usually slated for a new trial on damages alone, compromise verdicts require a new trial on all issues. The hallmarks of a compromise are hotly contested liability coupled with an inadequate verdict. This is also often characterized as a case in which liability and damages are inextricably intertwined. In such instances, the “record creates a strong suspicion that the inadequate damage award resulted from a lack of conviction by the jurors in their liability finding.”[22]
Due to the sacrosanct confidentiality afforded to juror deliberations, it is all but impossible to ascertain the jury’s thought process. Thankfully, that is not always necessary. Appellate courts appear split on what a party challenging a verdict as a compromise must show. The Third and Fifth districts do not tend to require proof beyond the two hallmarks listed above. As observed by the Fifth District, “[w]hether liability is hotly contested is determined by the evidence and arguments presented by the parties, not by whether one could overhear the jury’s deliberations.”[23]
On the other hand, the Fourth District typically requires an independent indication that the jury was struggling to reconcile the law to the facts before a compromise will be inferred.[24] But even without objective evidence of juror confusion or deadlock, where liability is close and the jury awards less than the stipulated amount of economic damages, a compromise may be accepted as the only reasonable explanation.[25] Nor is a strict 50-50 apportionment of fault required to establish hotly contested liability. For instance, in Harrison v. Housing Resources Management, 588 So. 2d 64 (Fla. 1st DCA 1991), the jury apportioned fault 75-25, but awarded minimal medicals and no pain and suffering. The court held this was likely a compromise verdict and reversed for a new trial on all issues.
The Fifth District has recently taken a hardline stance on compromise verdicts, advocating for a blanket rule awarding a new trial on all issues whenever liability is hotly contested and the verdict is inadequate:
We suggest that courts adopt a rule that requires a “complete new trial when liability is close and damages clearly inadequate.” Such a rule would prevent “appellate courts from having to engage in the type of post-hoc mind-reading which would be necessary to decide whether the jury was confused, in which case a new trial on damages alone would be adequate, or compromising, which would require a new trial on liability as well.”[26]
This would, of course, elevate fairness over judicial economy, for better or worse, but the court’s reasoning is sound: “Justice is not served by accepting any aspect of a verdict returned by a jury that acted irrationally or unreasonably in reaching a comprised verdict on the issues of liability and damages.”[27] Rationally, defendants should not be punished for putting on a convincing defense. Yet, with liability removed from a new jury’s consideration, the likelihood of a higher award, exceeding what otherwise may have given, is substantial. Thus, the Fifth District’s policy of awarding a new trial on all issues seems preferable.
Verdicts Contrary to the Manifest Weight of the Evidence
Relationship problems caused by an unbalanced partner and verdicts that are contrary to the manifest weight of the evidence can take shape in many different ways, but at the end of the day, things just don’t add up. A trial judge can reverse a verdict on this ground when he or she believes that the verdict is not supported by the clear import of the combined evidence. But caselaw cautions that “the role of the trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict.”[28] In such circumstances, where the court is convinced that “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record,” he or she is duty bound to grant a new trial.[29]
A challenge based upon the manifest weight of the evidence is perhaps the most common challenge, but also the hardest sell. The jury system rests on the principle that verdicts should be rendered by a jury of the parties’ peers. That risks being undermined when judges, sitting as seventh jurors with veto power, substitute their own will for that of the collective jurors.[30] But, ultimately, the determination falls to the sound discretion of the trial court, and for that reason, orders granting new trials are not easily overturned.
However, the law does recognize some situations in which the appellate court may overturn a finding that the verdict is contrary to the manifest weight of the evidence, such as when the verdict is premised, in whole or in part, on an error of law,[31] or when the court’s finding is not supported by the record itself.[32] If either of those two situations are present, the appellate court must take a second look to determine whether the same result would have been reached by the trial judge had he not erroneously applied the law.[33] If the answer is yes, the determination may be reversed outright. But if the answer is not clear, the case must be remanded to the trial court for consideration in light of the correct law.[34]
Conclusion
Not all verdicts are created equal, and not all errors warrant relief. In fact, courts recognize that a party is not entitled to a perfect trial, just one free from harmful error.[35] Ideally, with advance preparation and timely objections, a party who believes the verdict is improper will be able to challenge the issue and obtain a new trial. But given the preference for conservation of judicial resources and deference to jury determinations, sometimes litigants just have to come to terms with the verdict they’ve been given. Or, as the famous refrain goes, “If you can’t be with the one you love…love the one you’re with.”[36]
[1] Crawford v. DiMicco, 216 So. 2d 769, 771 (Fla. 4th DCA 1968).
[2] See Rocket Grp. LLC, v. Jatib, 174 So. 3d 576 (Fla. 4th DCA 2015) (holding risk of inconsistent verdicts prevented bifurcation of wrongful termination case); Choi v. Auto-Owners Ins. Co., 224 So. 3d 882 (Fla. 2d DCA 2017) (reversing severance of claims against defendant driver and uninsured driver for risk of inconsistent verdicts).
[3] See also North American Catamaran Racing Association, Inc. (NACRA) v. McCollister, 480 So. 2d 669 (Fla. 5th DCA 1985) (finding inconsistent jury determination against boat manufacturer that boat was not negligently designed but manufacturer negligently caused decedent to drown); Anheuser-Busch, Inc. v. Lenz, 669 So. 2d 271 (Fla. 5th DCA 1996).
[4] See Florida Standard Jury Instructions 403.7, n.5 (“In cases involving claims of both negligence and defective design, submission of both claims may result in an inconsistent verdict.”).
[5] Id. at 649.
[6] Coba, 164 So. 3d at 644.
[7] Id. at 649.
[8] Keller Indus. v. Mogart, 412 So. 2d 950 (Fla. 5th DCA 1982) (“For all we know, defendant’s trial counsel intentionally, for tactical reasons, chose not to bring the problem to the court’s attention.”).
[9] See Coba, 164 So. 3d at 649 (“The very nature of all inconsistent jury verdicts is that the jury’s ‘finding’ as to one part of the verdict is mutually exclusive with the other finding, thus making the jury’s intent unclear.”).
[10] See Sunbank and Trust Co. of Brookesville, 666 So. 2d at 199; Chabad House-Lubavitch of Palm Beach Cnty. Inc., v. Banks, 602 So. 2d 670, 672 (Fla. 4th DCA 1992).
[11] Coba, 164 So. 3d at 644.
[12] Calloway v. Dania Jai Alai Palace, Inc., 560 So. 2d 808, 809 (Fla. 4th DCA 1990) (“Jury verdicts have been held inadequate in any number of cases where the award is equal to or less than the uncontroverted medical bills.”).
[13] See Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d 840 (Fla. 2d DCA 2011) (requiring new trial on damages for loss of consortium where evidence of deteriorated relationship was undisputed and there was no evidence attributing it to anything but the accident); Miami-Dade Cnty, v. Merker, 907 So. 2d 1213 (Fla. 3d DCA 2005) (husband of decedent entitled to new trial in wrongful death claim where evidence of love and affection between husband and decedent was undisputed and unrebutted).
[14] Avakian v. Burger King Corp., 719 So. 2d 342, 344 (Fla. 4th DCA 1998).
[15] Id.
[16] See Ellender v. Bricker, 967 So. 2d 1088 (Fla. 1d DCA 2007); Deklyen v. Truckers World, Inc., 867 So. 2d 1264 (Fla. 5th DCA 2004); Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla. 1998).
[17] Allstate Ins. Co. v. Manasse, 681 So. 2d 779 (Fla. 4th DCA 1996) (Klein, J. dissenting).
[18] Pogue v. Garib, 254 So. 3d 503, 507 (Fla. 4th DCA 2018).
[19] Meyers v. Shontz, 251 So. 3d 992 (Fla. 2d DCA 2018) (recognizing that a jury may reject a claim of injury based on plaintiff’s history of back pain and treatment).
[20] Deklyen, 867 So. 2d at 1264; Ellender, 967 So. 2d at 1088; Sanchez v. Hernandez, 971 So. 2d 944 (Fla. 3d DCA 2007).
[21] Easkold v. Rhodes, 614 So. 2d 495, 497-98 (Fla. 1993).
[22] Gross v. Lee, 453 So. 2d 495 (Fla. 1st DCA 1984).
[23] FLNC, Inc. v. Ramos, 220 So. 3d 1220, 1224 (Fla. 5th DCA 2017); see also Street v. H.R. Mort. & Realty Co., 949 So. 2d 1158, 1161 (Fla. 4th DCA 2007) (“Although the jury’s probable struggle with the liability issue was noted, we do not read Calloway as having held that a party must show that liability was hotly contested by the jury, as well as by the parties.”).
[24] See Jarvis v. Tenet Health Systems Hosp., Inc., 743 So. 2d 1218 (Fla. 4th DCA 1999) (requiring “some suggestion that the jury may have compromised on the verdict” before a new trial on all issues will be awarded) (citing Broward County School Board v. Dombrosky, 579 So. 2d 748 (Fla. 4th DCA 1991)).
[25] Newalk v. Fla. Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1992) (internal citations omitted).
[26] Internal citation omitted. FLNC, Inc., 220 So. 3d at 1225, n.1.
[27] Id.
[28] Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999).
[29] Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959).
[30] Wackenhut Corp. v. Canty, 359 So. 2d 430, 437 (Fla. 1978); McNair v. Davis, 518 So. 2d 416, 418 (Fla. 2d DCA 1988).
[31] See Van v. Schmidt, 122 So. 3d 243 (Fla. 2013). The author handled the appeals in this case.
[32] See Schmidt v. Van, 65 So. 3d 1105 (Fla. 1st DCA 2011) (citing Jordan v. Brown, 855 So. 2d 231, 234 (Fla. 1st DCA 2003)). The author handled the appeals in this case.
[33] Van, 122 So. 3d at 260-61.
[34] Id.
[35] Del’Ostia v. Strasser, 798 So. 2d 785, 787 (Fla. 4th DCA 2001).
[36] Stephen Stills, Love the One You’re With (Atlantic Records 1970).
James Sherman is a board certified appellate specialist. He handles civil appeals and trial support matters throughout Florida and regularly argues before all five district courts of appeal. He has also briefed cases in the Florida Supreme Court and the U.S. Court of Appeals for the 11th Circuit.
This column is submitted on behalf of the Appellate Practice Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.
