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.