Decision To Consolidate Your Case

This article addresses the pros and cons, procedures and methods of consolidating cases. Florida Rule of Civil Procedure 1.270(a) provides that a court may order a joint hearing or trial of any and all matters at issue in actions involving common questions of law or fact, including ordering consolidation of the actions. Consolidation may take several forms. The rule permits the court to combine cases for discovery only, for trial only, or for all purposes. See Fla.R.Civ.P. 1.270(a). Courts usually consolidate cases to speed up the trial process and to eliminate duplicative trials involving the same parties, issues, and evidence. See Maharaj v. Grossman, 619 So. 2d 399 (Fla. 4th DCA 1993) (except in “unusual cases,” consolidation should be granted to ensure the efficient and proper administration of justice). You may move to consolidate to pull separate individual actions into one and get a single judgment when the issues and witnesses are the same and the rights of the parties can be determined in one action. See Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982). You may also consolidate to tie more than one action together for the purposes of trial, although separate judgments or verdicts are rendered for each action. This is known as consolidation for trial. See Shores Supply Co. v. Aetna Cas. & Sur. Co., 524 So. 2d 722 (Fla. 3d DCA 1988) The court has broad discretion to decide whether to consolidate cases. Maharaj, 619 So. 2d at 399). Courts look with favor on a motion to consolidate that promotes judicial economy and does not prejudice the parties. See Wagner v. Nova Univ., Inc., 397 So. 2d 375, 377 (Fla. 4th DCA 1981). Under the rule, the court may consolidate on its own motion, even over the parties’ objections. Fla.R.Civ.P. 1.270(a). However, a sua sponte order of consolidation without notice to the parties deprives the parties of due process of law and is reversible error. Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So. 2d 1036 (Fla. 4th DCA 1985). Cases consolidated for trial do not lose their separate identities. Wagner, 397 So.2d at 377 (consolidation does not merge suits into a single cause, or change rights of the parties, or make those who are parties in one suit parties in another suit). For example, if a case is consolidated for trial, but not for discovery, discovery in one case cannot be used in the other case. Judgments entered in consolidated cases apply only to the parties named in the judgments. You should move to consolidate, especially for discovery purposes, as soon as possible for efficient handling of the case. For example, to save costs by sharing expenses with other parties who must put on the same evidence and to increase the impact of causation evidence, such as when many plaintiffs suffered the same injuries from the same occurrence. Do not wait too long to consolidate cases because the court may deny a motion that affects the trial date.

The Process: How to Consolidate

First, determine if a motion to consolidate is best for your client. Some factors to consider are whether consolidation will: 1) delay your trial date; 2) increase or save expenses; 3) join you in front of a jury with a party who is sympathetic or unsympathetic; 4) join your opponent in front of a jury with a party who is sympathetic or unsympathetic. Ultimately, you must make the decision in the best interests of your client. If you do decide that consolidation is appropriate for your case, then you must determine if you have grounds to consolidate. Any of the following grounds will support consolidation: 1) the cases involve the same or substantially the same core of operative facts and questions of law; 2) consolidation of the actions avoids unnecessary costs, delays, or the possibility of inconsistent verdicts, Travelers Exp., Inc. v. Acosta, 397 So. 2d 733 (Fla. 3d DCA 1981); 3) consolidation saves judicial resources, see State v. Powell, 721 So.2d 795 (Fla. 1st DCA 1998). If you have grounds to consolidate, before cases may be consolidated for trial, they should be set before the same judge. Pages v. Dominguez, 652 So. 2d 864 (Fla. 4th DCA 1995). This type of transfer is done by local or administrative rule and is different from transfers under Fla.R.Civ.P. 1.060. If the cases are not before the same judge, move to transfer the latest filed case to the judge handing the case with the oldest case number. In your motion to consolidate, state why the case should be sent to another judge. Allege the following grounds to support a motion to transfer: 1) the case is substantially the same as the case pending before another judge; and 2) the case pending before the other judge has an older case number. If you have grounds to consolidate and all the cases to be consolidated are before the same judge, move to consolidate the cases under Florida Rule of Civil Procedure 1.270(a). Before serving or filing the motion to consolidate, ask all the attorneys involved in the separate cases to agree to consolidate. If all counsel agree to consolidation, have them sign a stipulation. Next, prepare a proposed agreed order granting the motion to consolidate and submit the motion, stipulation, and agreed order to the court. If all counsel do not agree to consolidate, submit the motion and a memorandum of law showing why the court should consolidate the cases. Set the matter for hearing and provide the court with case law that supports consolidation in your case. Attach any supporting documents to the memorandum, including affidavits that establish good reasons for consolidation. Be sure to review the local rules or customs for specific rules and guidelines regarding motion practice. When you move to consolidate actions, ask the court to indicate which action will continue to exist and which ones will be abated because they have been consolidated with the “continuing” action. The other actions abate upon your filing of the order of consolidation in each court file affected. Any new pleadings, motions, or other documents in the surviving action will have the caption of the surviving action only and this caption should reflect the case numbers of the consolidated cases.

“Test” Cases as a Product of Consolidation

In complex, multiple plaintiff cases, the court may through stipulation and court order allow a “test case” to be tried by one plaintiff to establish liability for all similarly situated plaintiffs. This cost saving technique is best used when liability is almost certain and the defendant cannot or will not admit liability. The test case is also tried on damages so that it can be appealed if necessary. The result may then serve as a template for resolution of the remaining cases by settlement. If the remaining cases do not settle, they will be tried on damages, but not liability, because the parties will have stipulated to be bound by the liability result.

Be Wary of an Opponent That Moves to Consolidate

A party may use consolidation as a delaying tactic. Courts may be reluctant to consolidate if it will interfere with the timing of events that occur before trial. See Maharaj, 619 So. 2d at 401 (appellate court reversed refusal to consolidate that would have delayed trial date because, under the specific facts of the case, the efficient administration of justice and possibility of inconsistent verdicts outweighed the interest in proceeding to a speedy trial). Consolidated cases may not be tried until all cases are ready for trial. Although consolidation with a case that is not yet ready for trial may delay a case that is ready for trial, that alone is insufficient reason to deny consolidation where all other factors favor joint trial. Pages v. Dominguez, 652 So. 2d 864 (Fla. 4th DCA 1995). Despite the potential for delay, consolidation can solve or avoid problems such as inefficient management of multiple plaintiff cases arising out of the same facts or occurrences and inconsistent verdicts. Tommie v. LaChance, 412 So. 2d 439 (Fla. 4th DCA 1982). Conversely, consolidation can also cause problems, such as delay, Maharaj, 619 So. 2d at 401, difficulties with venue, interference with plaintiff’s selection of the forum, Wagner, 397 So. 2d at 377, added expense, overburdening of judicial resources, Pages, 652 So. 2d at 867 (Fla. 4th DCA 1995). Defendants are more likely to move to consolidate cases because consolidation can reduce damages. This is because juries often award less money in cases with one defendant and multiple plaintiffs because the jury perceives that the defendant is paying out a lot of money. Moreover, if any one of the plaintiffs’ cases is weak, it can weaken all the cases, as juries tend to be most influenced by the plaintiff who is the least appealing. Consolidation can also save the defendant attorney fees when one attorney represents the defendant in several different but related cases. On the other hand, Plaintiffs are often gamblers and are less likely to move to consolidate for the aforementioned reasons. A weak case on liability will result in a zero verdict for all consolidated cases, but by keeping the cases separate, one weak case does not jeopardize the stronger ones. The decision on whether to consolidate requires in depth knowledge of your case and a multi-tiered analysis of the pros and cons of consolidation. Undoubtedly, the decision of whether to consolidate is one of the most important decisions you will have to make when faced with it, but careful consideration of the factors listed herein will help to ensure a successful result.