Helpful "Trial Tips®" to Hone Your Litigation Skills

Copyright © 2007

By: Ervin A. Gonzalez, Esq.
Board Certified Civil Trial Lawyer,
Florida Bar and National Board of Trial Advocacy

For purposes of judicial economy and efficiency, a trial lawyer may seek to collectively file a lawsuit involving several plaintiffs against the same defendant or defendants. This should be done only if there is commonality among the issues, the damages, and the plaintiffs. If the theories in the claims are the same, the plaintiffs have suffered the same injuries or damages arising out of the same factual pattern, then a trial lawyer should consider filing a consolidated claim.

If the trial court finds that the actions should not have been joined, the trial judge has the discretion to sever the claims pursuant to Florida Rules of Civil Procedure, 1.250. Nevertheless, the trial court MAY NOT dismiss the cases for any misjoinder. Florida Rule of Civil Procedure 1.250 specifically states that "the proper remedy for misjoinder is severance." See Harrell v. Heiss Oil & Chemical Corporation, 287 So.2d 291 (Fla. 1973); Anderson v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travelers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981).

The trial court may not sever the claims and require the plaintiffs to file separate lawsuits or be dismissed. If the court requires such action, it would be tantamount to dismissing the plaintiffs' causes of action for misjoinder. This is prohibited by Rule 1.250. The Third District Court of Appeals in Alanco v. Bystrom, 544 So.2d 217 (Fla. 3d DCA 1989), specifically held that where a trial court makes a factual determination that there is a misjoinder of parties, the Court may sever the parties or order separate trials, but the court may not direct the plaintiffs to refile pending claims and pay filing fees or suffer dismissal on the grounds of misjoinder. 544 So.2d at 217, 218. The Alanco Court went on to state that it is the legal effect of an order rather than its language that defines the trial court's ruling. Id.

Accordingly, judicial economy and efficiency often weights heavily in favor of filing joined and consolidated claims. There should be no risk of dismissal involved inasmuch as Florida law would only allow severance if misjoinder is found by the trial court. In this day and age where complex mass tort litigation and mass ex-contractu litigation is no longer a rarity, but found on a regular basis, courts should interpret the laws allowing consolidation and joinder to benefit all parties and reduce unnecessary litigation expenses. Nevertheless, if the court exercises its discretion and determines that joinder was not proper in a given case, the proper and sole remedy for misjoinder recognized in Florida is severance.