Contentious Trial, Improper Argument, New Trial

The Florida Fourth District Court of Appeal has reversed a judgment in a personal injury action due to misconduct of defense counsel

Appellant, personal representative of the estate of decedent Lauren Robinson (the plaintiff below), appeals a final judgment for the defendant, appellee Dillard’s, Inc., alleging multiple errors on the part of the trial court and numerous instances of misconduct at trial on the part of defense counsel and arguing that these effectively denied plaintiff a fair trial…for the reasons given below, we hold that defense counsel’s misconduct was so prejudicial as to warrant a new trial, and we reverse the verdict on this basis.

The misconduct

During closing arguments, referring to plaintiff’s testimony that she had tapped her brakes to take her vehicle off cruise control before turning into her driveway, defense counsel told the jury, “Why is that important? We took her deposition for hours and it never came up.” Plaintiff’s counsel objected and requested a sidebar, to which defense counsel replied by turning to the jury, raising his hands and exclaiming, “Well, that lasted about 12 minutes.” Plaintiff’s counsel moved for a mistrial, arguing that it was improper to refer to the deposition because it had not previously been introduced into evidence and that defense counsel was using this characterization of extra-record evidence to accuse plaintiff of dishonesty.

 The trial judge denied plaintiff’s mistrial motion and instructed the jury but

It is undisputed that defense counsel’s attempted impeachment of plaintiff’s credibility by reference to alleged inconsistencies between her trial testimony and her pretrial deposition was improper, as was his open disparagement of plaintiff’s counsel after the latter had registered an eminently reasonable objection to the impropriety. While a single improper remark, properly and immediately cured by an instruction by the trial court, will not necessarily constitute adequate grounds for mistrial, we find that it did so in the instant case where the issue of the defendant’s liability essentially hinged on the comparative credibility of two opposing witnesses, plaintiff and Mr. Davis. A finding of harmfulness is especially appropriate when the context suggests that an error was made intentionally.

Goose and gander

We hasten to add that plaintiff’s counsel did not exit these proceedings with clean hands either. We decline to enter into a discussion of “who started it,” but we note that plaintiff’s counsel’s snide denigration of [defense expert] Dr. Ipser’s professional occupation in the presence of the jury and postings by plaintiff’s counsel on his own public Facebook page – which included commentary on the proceedings and the evidence and derogatory references to one of defendant’s attorneys – were well outside the bounds of professional conduct to which members of our profession are expected to adhere.

A dissent finds the argument improper but not reversal-worthy

As for whether the cumulative effect of the various statements made by defense counsel warrants a new trial, it is important to note that the trial was contentious on both sides, with the plaintiff’s attorney admitting that he was not “terribly proud” of his behavior during trial. At one point, the trial court advised both sides that it had “given [them] a little bit of leeway” but would tolerate nothing  less than professionalism and civility going forward. I disagree with the majority that the point was reached in this case where the totality of all errors and improprieties was pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.

Hat tip to the best ethics blog on Florida matters – sunEthics. (Mike Frisch)