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

Trial attorneys should consider joining Plaintiffs in the same lawsuit if the action arose out of the same core of operative facts and if the plaintiffs' interests do not conflict. Rule, 1.210, Fla.R.Civ.P. allows any and all persons having a unified interest in a matter to join in a lawsuit as plaintiffs. This Rule also allows any person having an interest in the subject of an action, and in obtaining the relief demanded, to join in the same lawsuit. Joinder is appropriate if each claim arose out of the same factual pattern so that if each matter were brought separately, the plaintiffs causes of action would be identical and their allegations would be the same against the defendant(s). See, Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968).

Joinder of plaintiffs serves the interests of judicial economy, as well as the interests of all parties joined in the lawsuit, since the costs and administrative burden to all concerned are substantially reduced. Additionally, by having the cases joined for pleading, discovery and trial, much time is saved and inconsistent verdicts by different juries are avoided.

Because of the backlog of cases, and the delays in bringing civil cases to trial, many courts have aggressively sought to join cases for purposes of discovery and trial. This has been done successfully in the Eleventh Judicial Circuit, in and for Dade County in personal injury litigation, and has also been done in mass tort litigation in other states such as Maryland, New Jersey and Texas, where thousands of plaintiffs have been consolidated in a single lawsuit for all purposes.

Pursuant to Rule 1.270(a) Fla.R.Civ.Pro., a trial court may consolidate actions involving common questions of law and fact, or the court may order a joint hearing or trial of any or all matters at issue in the actions. The purpose of the rule is to avoid unnecessary costs or delay. The court may also order a separate trial of any claim in order to avoid prejudice to any party, Rule 1.270(b), Fla.R.Civ.Pro.

It has long been recognized that permitting individuals with similar interests and substantially the same subject matter to present their claims in one lawsuit will serve the ends of justice without violating the acceptable pleading rules and without violating a party's due process rights. Mullray v. Aire-Lok Co., 216 So.2d 801 (Fla. 3d DCA 1968); Slaughtery v. Barnett, 154 So. 134 (Fla. 1934). Joinder of similar claims in a single lawsuit tends to simplify rather than complicate the trial of the cause and will enable the trial court to do complete justice in the subject matter of the litigation. Mullray, 216 So.2d at 803.

If a trial court does not allow multiple claims arising out of the same fact pattern to proceed in a joined case, there may be a tremendous burden created upon all counsel, the parties, the court and the tort system in general. This is because there would be repetitive pleadings, motions, summons and filing fees, discovery depositions, etc. This needless waste of judicial resources should be avoided by allowing joined cases to proceed on a consolidated basis. See, Condominium Owners Organization of Century Village East, Inc. v. Century Village East, Inc., 428 So.2d 384 (Fla 4th DCA 1983). (Joinder was recommended by the appellate court after the failure of a class-action claim.)

Imagine what a nightmare it would be for a trial lawyer to have to prepare and try identically the same case over 100 times. In essence, this is what occurs when joinder of cases is not sought or allowed in mass tort or commercial litigation cases. In W.D. Carbonell v. American International Pictures, 313 So.2d 417, 419 (Fla. 3d DCA 1975), a defendant moved to dismiss the Plaintiffs' complaint for allegedly mis-joining nine (9) plaintiffs' claims against the defendant for breach of contract, accounting, fraud, and deceit. In that case, the Third District Court of Appeals upheld the trial court's order denying the defendant's motion to dismiss for misjoinder, holding that misjoinder of parties is not a ground for dismissal of an action pursuant to Rule 1.250, Fla.R.Civ.P. The Court further stated that if joinder was not allowed, the probable result would lead to judicial waste, including "... nine (9) separate complaints being filed, pre-trial discovery being multiplied nine (9) fold, defendant's records being audited nine (9) separate times, and nine (9) jury trials being held to determine basically the same legal issues." Id. The court concluded by stating that "... it cannot be said that the ends of justice would be served best thereby." Id. at 419.

If the trial court determines that the joined claims should not have been brought together, the court cannot dismiss the case. Misjoinder is not a ground for dismissal. The proper remedy pursuant to Rule 1.250, Fla.R.Civ.P. is severance of the claims that were improperly joined. This would allow the cases to proceed on an individual basis without delaying the cases from proceeding. Harrell v. Hess Oil & Chemical Corp., 287 So.2d 291, 294 (Fla. 1973); Anderson v. Barry D. Brown, 524 So.2d 457 (Fla. 3d DCA 1988); Travellers Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3d DCA 1981).

The joint handling and trial of otherwise repetitive cases benefits everyone and serves the interests of judicial economy. It also lowers the costs and burden to all parties and the court. Since all parties' rights can be adequately protected and due process requirements met, trial attorneys should seriously consider joining plaintiffs' claims whenever possible.