Fabre (non-party) Defendants and Trial Procedure

Fabre (non-party) Defendants and Trial Procedure

Trial strategy is an important part of the preparation of
any claim or claims to be tried before a jury. 
Both Plaintiff’s attorneys and Defense attorneys must evaluate their
case and determine the best possible way to present evidence to a jury so that
it is understood and it creates the best chance of success for the client.  The developing of an effective trial strategy
is one of the most important considerations in hiring a trial attorney. 
All trial attorneys are trained in the rules of evidence and
trial procedure.  Part of developing an
effective trial strategy is the lawyer’s effective use of the rules of evidence
and trial procedure.  However, sometimes
a trial attorney tries to trap the opposing attorney in the minutia of trial
procedure to such a degree that it could be considered “gaming the system.”
Rules governing the use of non-party defendants are
particularly complex and sometimes ripe for gamesmanship that denies one side
fair access to the judicial system.  A
non-party defendant is a person or entity that a Defendant claims may be
entirely or partially responsible for damages claimed by a Plaintiff in a civil
case.   Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993).  This principle is important
because a Defendant may avoid financial responsibility for damages if a jury
determines a non-party defendant is at fault for the damages claimed by the
Plaintiff. 
Complications arise when a Plaintiff is damaged by multiple
persons or entities.  The Plaintiff must
sue or make claims against all persons or entities who may be responsible and
during the course of settlement negotiations, some of the defendants may enter
into settlement agreements with the Plaintiff and thus will be dismissed from
the lawsuit.  Depending on the
circumstances, a Defendant may ask the Court to allow the jury to consider the
negligence of a settled Defendant in apportioning the fault of the non-settled
Defendant. 
So what happens when a Plaintiff settles against potential
Defendant’s and the remaining Defendant asks the Court to have the jury
consider the negligence of the settled Defendant’s?  All manner of gamesmanship options can arise
for the Defendant.  This is the scenario
that the Second District Court of Appeal considered in a recent case.  Edwards v. Rosen, 41 Fla. Law Weekly D295 (Fla.
2nd DCA January 29, 2016).
In the Edwards case, the Plaintiff settled with multiple
Defendants prior to trial.  At the start
of trial, the remaining Defendant sought to add some of the settled Defendants
as non-party Defendants.  The Court allowed
the last minute addition and the Plaintiff was forced to adjust its trial
strategy to address the arguments associated with the non-party
Defendant’s.  However, at the end of the
trial, the Defense attorney withdrew his non-party defendant request, which
meant that the jury was no longer going to consider any non-party
Defendant. 
The Plaintiff had expending much of his trial strategy
addressing the Defense arguments that were no longer going to be considered by
the jury, instead of addressing the negligence of the Defendant that remained in
the case.  The Defense attorney used
procedure to force the Plaintiff to argue against one theory, and then at the
last minute was able to convince the trial judge to change the theory presented
to the jury. 

The District Court of Appeal was not fond of the Defendant’s
trial strategy of essentially baiting the Plaintiff’s attorney to argue one
way, then requesting something different after the trial was concluded.  The Court ruled that the trial Court abused
its discretion allowing the Defense attorney to game the procedure and system
as he did.  As a result, the Plaintiff
was granted a new trial where he could present his case without being
prejudiced by the gamesmanship by a Defense attorney taking advantage of the
Rules of Civil Procedure.   
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