Where the jury finds liability and no damages, an objection that the verdict is inconsistent does not preserve the argument that the verdict is the result of an unlawful compromise, says the Eleventh Circuit  in Reider v. Philip Morris USA, Inc., No. 14–11494, 2015 WL 4256726 (11th Cir. July 15, 2015).  There, a jury returned a verdict finding the defendant 5% liable for the death of the plaintiff’s husband, but awarded no damages.  The plaintiff argued that the verdict was inconsistent and asked the court to send the jury back to re-deliberate damages.  Upon denial of the objection, the plaintiff moved for a mistrial on the same grounds, and the trial court again denied the motion.

On appeal, however, the plaintiff argued that she was entitled to a new trial because the verdict was the result of an unlawful compromise.  She asserted that she preserved the claim, even though she never used the term “compromise verdict,” because she “articulated the hallmarks of a compromise verdict” in her arguments. 

Although the court noted that it does not require a litigant to “utter certain magic words” or make an objection “with polished lucidity,” it found the plaintiff “did not do enough.” At trial, she (1) specifically used the word “inconsistent”; (2) requested that the jury be sent back to re-deliberate, a remedy available only where a verdict is inconsistent and not available where the verdict is the result on an unlawful compromise; (3) the district court orally and in a written order described the objection as an inconsistent verdict and, therefore, it was clear the district court was not under the impression she intended to raise a compromise verdict objection; and (4) she did not file a motion for reconsideration or request a new trial.

Preservation Issue: Properly identify your objections and, when objecting, be sure to request the appropriate remedies.

Tips: The court recognized that in the “heat of a trial,” counsel need not make objections “thoroughly,” but must do enough to put the court on notice.  That rule of preservation translates to every courtroom.  For this reason, when in doubt, articulate your objection in as many forms as can be supported by law and fact.  If the issue is significant enough, consider what other possible objections may apply and get them on the record – orally or in written form – even if you think it may be too late. Finally, don’t forget to consider the effect of the requested remedy on preservation.