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Land Mine #7: Misconduct of Counsel

Land Mine #7: Misconduct of Counsel

Challenging attorney misconduct requires close attention to specific procedures. When a party objects to attorney misconduct during trial, including improper argument, and the objection is sustained, the party must also timely move for a mistrial or request a curative instruction in order to preserve the issue for a trial court’s review of a motion for new trial. If the issue is not preserved in this manner, then the conduct is subject to fundamental error analysis under the trial court’s opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1027 (Fla. 2000).

Under Murphy’s fundamental error analysis, the party moving for a new trial “must first establish that the argument being challenged is, in fact, improper.” The party must then establish that the argument is harmful, which requires that “the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” The Florida Supreme Court has recently elaborated on the harmless error test in civil appeals. In Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (Fla. 2014), the supreme court announced the following test to determine harmless error: “To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” The court will now focus on the effect of the error on the trier-of-fact, and not on the result. 160 So. 3d at 1256. Third, the improper comment must be incurable, meaning that sustaining a timely objection and a curative instruction “could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Finally, the party must “establish that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” This category must be narrow in scope — for example, “appeals to racial, ethnic, or religious prejudices.” Once a party has demonstrated all four requirements, that party is entitled to a new trial on the basis of “fundamental error.” On appeal of the trial court’s decision to grant or deny a new trial, the appellate court applies an abuse of discretion standard of review.

If the objection to attorney misconduct is overruled, a motion for mistrial would be futile; under those circumstances, a motion for mistrial is not necessary to preserve the issue for review. Additionally, review of any objection made during closing argument is limited to the grounds stated in the objection.

Improper argument by counsel is argument that is “designed to inflame the emotion of the jury rather than prompt a ‘logical analysis of the evidence in light of the applicable law.'” R.J. Reynolds Johnson Co. v. Calloway, 201 So. 3d 753, 761 (Fla. 4th DCA 2016) (quoting Murphy, 766 So. 2d at 1028).

Examples of improper argument by counsel include: 1) commenting on Defendant’s failure to take responsibility; 2) disparaging Defendant for defending itself; 3) arguments suggesting a party is doing something wrong by not showing proper support or emphasis; 4) Plaintiff’s counsel injecting himself into the case with gratuitous remarks (“I have a daughter the same age.”) Id. at 759-761.

Next week we will focus on Land Mine #8: Jury Instructions.

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