Florida - PROFESSIONALISM
Fifth DCA reverses conviction due to failure to hold Nelson hearing, and criticizes State for misrepresentation in its brief. [Added 10/13/21]
Criminal Defendant appealed his conviction and sentence after entry of a plea agreement in a child pornography case, contending that the court erred in failing to conduct a Nelson hearing. The Fifth DCA agreed and reversed.
Defendant sent 3 letters to the trial court expressing dissatisfaction with his appointed counsel and requesting a Nelson hearing. He complained that counsel was not providing him with evidence, failed to retain a forensic expert to examine his computer, and failed to adequately inform him about plea discussions. He also alleged that the attorney-client relationship was “beyond repairs” and that he was concerned about getting a fair trial.
The court erred by not holding a Nelson hearing. Defendant “did more than simply express general dissatisfaction with his counsel. His requests to discharge counsel were clear and unequivocal, and his allegations of incompetence were sufficiently specific to warrant further inquiry. . . . Had the trial court conducted a hearing, counsel could have explained what efforts, if any, he had taken to address [Defendant’s] complaints.” (Citation omitted.) The appeals court remanded the case for the trial court to hold a Nelson hearing “to determine whether conflict-free counsel is necessary to file a motion to withdraw” the plea.
In a footnote, the appeals court criticized the State for making a misrepresentation in its brief. “We note the State’s misrepresentation in its brief that [Defendant] had expressed satisfaction with his counsel’s representation during the course of his plea colloquy. That question was never asked by the trial court, nor did [Defendant] make such a statement.” Hyacinthe v. State, __ So.3d __ (Fla. 5th DCA, No. 5D21-312, 9/17/2021), 2021 WL 4228319.
Second DCA criticizes prosecutor’s unobjected-to closing argument but affirms conviction because improper argument not fundamental error. [Added 9/1/21]
Criminal Defendant was convicted of sexual activity with a child. He appealed, arguing in part that the prosecution’s closing argument contained two improper arguments that constituted fundamental error. (The arguments were not objected to at trial.)
The Second DCA ruled that one of the arguments was a permissible comment in view of Defendant’s theory of the case. The second argument was improper because the prosecutor vouched for the victim’s credibility, telling the jury that the victim was “credible” and that “she’s telling you what happened to her.” The appeals court concluded that this single comment, while improper, did not amount to fundamental error. “Though the victim’s credibility was central to the State’s case, this comment is not enough to overturn [Defendant]’s conviction because (1) it was ‘relatively brief’; (2) it was ‘an otherwise capably run criminal trial’; and (3) there was other corroborating evidence against [Defendant]. Berouty [v. State, 290 So.3d 82, 86 (Fla. 2d DCA 2020)] (citing eleven other cases to conclude that the prosecutor’s comment did not amount to fundamental error). ‘While we cannot condone the comments that this assistant state attorney made during closing statements,’ we conclude that the prosecutor’s comment did not constitute fundamental error for the same reasons we so concluded in Berouty. Id.” Gilbert v. State, __ So.3d __ (Fla. 2d DCA, No. 2D19-1622, 8/13/2021) (on rehearing), 2021 WL 3572863.
Fourth DCA reverses $10 million verdict in tobacco case due to improper arguments by plaintiff’s counsel. [Added 8/10/21]
Plaintiff sued Tobacco Companies in a wrongful death case. Following a jury verdict the trial court entered judgment for Plaintiff in the amount of $4 million in compensatory damages and $6 million in punitive damages. Defendants appealed, contending that numerous statements by Plaintiff’s counsel during closing argument warranted reversal. The Fourth DCA agreed and reversed.
The appeals court discussed the improper arguments in 3 categories: (1) preserved improper arguments that were overruled; (2) preserved improper arguments that were sustained; and (3) unpreserved improper arguments.
As to the first category, the court ruled that the trial court “abused its discretion in overruling objections to s to (a) quoting from Orwell’s 1984, (b) quoting from Dr. [Martin Luther] King [where there was no nexus between the quote and the case], (c) referring to the tobacco industry as an ‘enterprise of death,’ (d) misstating the evidence, (e) attacking appellants for conceding medical causation, and (f) injecting [Plaintiff’s] counsel’s personal opinion. None of these comments prompted a ‘logical analysis of the evidence,’ but rather were designed to inflame the emotions of the jury.” The court distinguished its recent decision in R.J. Reynolds v. Kaplan, 2021 WL 2559664 (Fla. 4th DCA, June 23,2021), where it found closing arguments to be improper but nevertheless affirmed the judgment for the plaintiff. “Unlike in Kaplan, here the verdict returned by the jury was not ‘far less’ than the amount requested by [Plaintiff’s] counsel. Additionally, unlike in Kaplan, and most importantly, the improper comments in the instant case were not brief and isolated but rather pervaded the entire closing argument. It cannot be said, based on the record, that the jury was not affected by all the improper arguments.”
Improper arguments in the second category included: “(a) encouraging the jury to punish appellants for what they did to ‘millions of family members,’ (b) twice referring to the absence of appellants’ corporative representatives at trial in violation of a pretrial order in limine, (c) referring to appellants’ defense as ‘the last refuge of the scoundrel,’ and (d) stating why [Plaintiff’s] counsel litigates Engle cases.”
Improper arguments in the third category could be considered by the appeals court when it engaged in a harmless error analysis. Plaintiff’s counsel “(a) misstated that appellants admitted compensatory damages; (b) improperly encouraged the jury to ‘punish a wayward corporation that has erred, that has lost its moral compass, that has acted as an evildoer and a wrongdoer for decades’; and (c) improperly stated that appellants have ‘reaped an industry of death and billions and 11 billions of profit.’”
The court summarized: “In summary, we are required to reverse based on the preserved errors, as well as cumulative effect of the preserved and unpreserved errors including, but not limited to, invoking Dr. King in calling for ‘justice;’ quoting Orwell’s dystopian novel 1984; calling appellants ‘an enterprise of death’ and ‘scoundrel[s]’; suggesting that the jury should punish appellants for harm to others; twice referring to the lack of corporate representation in the courtroom, contrary to an order in limine; and making several other improper comments. This is a case in which the totality of all errors and improprieties is so pervasive as to raise considerable doubts about the overall fairness of the trial court proceedings.” (Citation omitted.) R.J. Reynolds Tobacco Co. v. Neff, __ So.3d __ (Fla. 4th DCA, No. 4D19-2646, 7/14/2021), 2021 WL 2947738.
Judgment of more than $20 million reversed due to closing arguments that “had no purpose but to inflame the jury.” [Added 7/23/21]
Plaintiff, an estate, sued Tobacco Companies for injuries to and death of the decedent allegedly caused by the Companies’ products. The jury awarded compensatory damages of $12 million, along with punitive damages of $15 against one defendant and $10 against the other. On appeal the defendants contended that arguments by Plaintiff’s counsel were improper. The Fourth DCA agreed and reversed.
The arguments at issue included calling one defendant a “soulless enterprise of death,” reading a passage from the book 1984 to that “had no connection with the evidence” in order to “equate the Tobacco Companies with Big Brother,” comparing the defendants to Dorian Gray and saying that they were “rotten inside” and “rotten to the core” – all with “no purpose but to inflame the jury.”
The appeals court noted that the comments were similar to those made by the same lawyer in another case, R.J. Reynolds Tobacco Co. v. Kaplan, 2021 WL 2559664 (Fla. 4th DCA, June 23, 2021). The court affirmed the judgment for the plaintiff in Kaplan because “the verdict returned by the jury in each phase was far less than requested by Plaintiff’s counsel,” but in this case “[Plaintiff’s] counsel[‘s] intent to inflame the jury succeeded. . . . [Plaintiff] received almost exactly what was requested.” R.J. Reynolds Tobacco Co. v. Mahfuz, __ So.3d __ (Fla. 4th DCA, No. 4D19-2236, 6/30/2021), 2021 WL 2673382.
Despite affirming judgment for plaintiff judgment in tobacco case, Fourth DCA strongly condemned plaintiff’s “inflammatory improper arguments” implicitly comparing defendants to Nazis and Big Brother. [Added 7/19/21]
Plaintiff prevailed in a personal injury suit against tobacco companies (“Tobacco”). Tobacco appealed, contending Plaintiff’s closing arguments were improper and required reversal. In strong language the Fourth DCA condemned the “inflammatory improper arguments.” The appeals court nevertheless affirmed the judgment because its “extensive review of the record in this case leads us to the conclusion that the jury was not affected by the argument, understood the instruction that what the attorneys argued was not evidence, and rendered its decisions according to the evidence.”
One of the improper arguments referred to the movie Schindler’s List, but the court overruled Tobacco’s objection and declined to grant a mistrial. The Fourth DCA agreed with Tobacco’s assertion that the argument implicitly linked Tobacco to the Nazis: “With all due respect to the trial court, the import of comparing the Engle findings to the ‘absolute good’ of Schindler’s List, listing 800 names which were going to be ‘pull[ed] out of the concentration camp and save their lives’ is a clear analogy comparing Tobacco to the Nazis. Even a person serving on a jury who had not seen Schindler’s List would make that connection, even though Plaintiff’s counsel did not specifically mention Germany, World War II, or the Nazis. More importantly, while the trial court may not have thought that the reference to the movie likened Tobacco to the Nazis, ‘[w]hat the jury hears or may understand or infer is the critical point.’” (Citation omitted.) The appeals court noted that “Plaintiff has proffered no logical explanation of how a list of names relates to a list of findings in a court proceeding” and concluded that “Plaintiff’s counsel took a calculated risk that he could make such a circuitous comparison to Tobacco acting like Nazis and get away with it.”
On rebuttal Plaintiff’s counsel referenced George Orwell’s book 1984. Again, Tobacco objected but was overruled. The motion for new trial was denied. The appeals court viewed this argument as improper also. “Not only was the argument an appeal to sympathy by focusing on the torture Winston was about to endure, it was a direct appeal to the jurors’ emotions, given the graphic context of the situation in which the words were spoken. It is also extremely significant that the description of the scene was a second attempt to obliquely compare Tobacco to a torturous authoritarian regime.” (Emphasis by court.)
The court rejected Plaintiff’s contention that the Schindler’s List argument was permissible because no court specifically found it objectionable. “To so hold would invite this and other courts to play ‘whack-a-mole’ by batting down every new and creative Nazi (or Big Brother) reference that can be devised.”
The court pointedly observed that “[i]t is also disturbing that on at least four prior occasions, this court has addressed improper inflammatory closing arguments appealing to passion by” Plaintiff’s trial counsel, whom the court identified by name. (Emphasis by court.) The court closed with an urgent call to trial courts to ensure proper courtroom behavior and curb improper argument.
A concurring opinion suggested that it was time for appellate courts to take stronger measures to address the problem: “By declining to reverse cases solely because of attorney misconduct, attorneys who flagrantly ignore the rules are permitted to benefit from their malfeasance. When there is no real sanction for such behavior and thus no effective deterrence, something must change. But make no mistake; the primary responsibility for curbing misconduct lies first and foremost with the trial judge. If trial judges took greater care to ensure that such actions are not tolerated, there would be no need for our court to be involved.” R.J. Reynolds Tobacco Co. v. Kaplan, __ So.3d __ (Fla. 4th DCA, No. 4D18-2880, 6/23/2021), 2021 WL 2559664 (on motion for revised written opinion).
Finding no abuse of discretion, Fifth DCA affirms order denying motion for new trial despite noting “displeasure with certain actions taken by the defense.” [Added 7/13/21]
The jury found that Plaintiff in a personal injury case was not permanently injured and so awarded no non-economic damages. Plaintiff moved for a new trial based on alleged misconduct of defense counsel. The motion was denied.
Plaintiff appealed. She did not argue that the trial court committed error. Applying an abuse of discretion standard, the Fifth DCA affirmed. The court, however, pointed out that 2 events that occurred during the trial “if combined, may well have supported a decision to grant a new trial.”
In one situation, a defense expert testified to matters not in evidence and in violation of an order in limine. The second situation involved defense counsel, Gobel. The court noted that the conduct of both Gobel and Plaintiff’s counsel, Byrd, had led to a mistrial in the first trial of the case. At the close of the defense’s case Gobel moved a 140-page composite exhibit into evidence. The exhibit contained a single document from the Plaintiff’s urologist despite an order in limine excluding reference to Plaintiff’s gastric/abdominal issues. The insertion of the document “was not inadvertent” and referenced a referral from lawyer to chiropractor. This reference was highlighted by Gobel in a PowerPoint presentation to the jury for closing argument. The trial court sustained Plaintiff’s objection and instructed the jury to disregard the document.
Citing Andreaus v. Impact Pest Management, Inc., 157 So.3d 442 (Fla. 2d DCA 2015), the appeals court suggested that defense counsel’s conduct undermined the integrity of the judicial process and noted that “Gobel’s conduct was arguably worse than the defense counsel’s conduct in Andreaus because he chose not to bring the matter to the trial court’s attention prior to his attempt to ‘taint the jurors’ minds’ with inadmissible evidence.”
The appellate court concluded: “[T]he trial judge exercised great patience and conscientiousness in presiding over this highly contentious trial. While the misconduct of defense counsel and the improper testimony of a defense expert may well have supported a decision to grant a new trial, the record reflects, as appropriately argued by defense counsel below and to this court, several reasons why the granting of a new trial was not warranted.”
A concurring opinion expressed dismay at the conduct of both lawyers, calling them “nothing short of a nightmare for presiding judges.” The judge emphatically disagreed with the argument that Gobel was merely zealously advocating for his client, stating: “The bar is full of lawyers zealously representing their clients who do not resort to the types of behavior and tactics employed by Mr. Gobel. ‘Zealous advocacy cannot be translated to mean win at all costs, and although the line may be difficult to establish, standards of good taste and professionalism must be maintained while we support and defend the role of counsel in proper advocacy.’ Fla. Bar v. Buckle, 771 So.2d 1131, 1134 (Fla. 2000).” The concurring judge stated that “it is time such behavior stops” and suggested that imposition of sanctions might be necessary. Bowers v. Tillman, __ So.3d __ (Fla. 5th DCA, No. 5D19-1757, 6/18/2021), 2021 WL 2483030.
See also Cemoni v. Ratner, __ So.3d __ (Fla. 5th DCA, No. 5D19-3629, 6/18/2021), 2021 WL 2483540 (in case involving same 2 lawyers, court affirmed denial of motion for sanctions against defense counsel despite counsel’s “mischaracterizations”).
Third DCA finds fundamental error in closing argument and reverses verdict for the plaintiff in insurance case. [Added 3/19/21]
Insureds sued Insurer after suffering water damage to their home. Insurer contended that the repairs made by Insureds were staged and that the claim was fraudulent. The jury found for Insureds. Insurer moved for a new trial, contending that “plaintiffs’ counsel committed reversible fundamental error in closing argument by calling [Insurer’s] expert witness a ‘liar’ and making inflammatory, prejudicial, and sexist comments about defense counsel.” Insureds pointed out that many of the comments were not objected to and that, consequently, any error was not preserved. The trial court denied the motion for new trial. Insurer appealed.
The Third DCA reversed, finding prejudicial fundamental error under the 4-part test set out in Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000). Under Murphy, to get a new trial for unobjected-to closing argument the movant must establish that the argument was improper, harmful, and incurable, and that it “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”
Among the closing argument remarks in question were repeated assertions that defense counsel lied to the jury. Also, the trial court found that certain comments denigrating a female defense counsel were sexist. Further, Insureds’ counsel repeatedly referred to Insurer’s expert witness as lying and as a hired gun.
The Third DCA addressed the remarks. “’[D]erogatory comments specifically attacking the integrity of opposing counsel constitute fundamental error, depriving the plaintiffs of a fair trial.’ . . . This Court has repeatedly held that arguments claiming opposing counsel ‘lied to the jury’ or accusing counsel of ‘trickery’ and ‘hiding the ball’ are highly prejudicial and improper.” (Citations omitted.) Although the trial judge interjected when Insureds’ counsel made the sexist remarks, the appeals court concluded that the judge’s admonition did not cure “the cumulative effect of the prejudicial statements.” As to the comments about the expert, the appeals court ruled that “argument referring to the defense expert witness as a ‘liar’ and a ‘hired gun’ constituted fundamental error as counsel’s remarks were not supported by record evidence. It is only permissible for counsel to refer to a witness as being a ‘liar’ where ‘such characterizations are supported by the record.’” (Citations omitted.) The court further noted that Rule 4-3.4(e) prohibits lawyers from stating personal opinions as to the credibility of a witness.
In reversing the judgment for Insureds, the court summarized: “We find the improper remarks in this case were ‘so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.’ Murphy, 766 So. 2d at 1029. ‘[T]he argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.’ Id. at 1030. We, therefore, conclude the trial court abused its discretion in denying the motion for new trial.” Florida Peninsula Ins. Co. v. Nolasco, __ So.3d __ (Fla. 3d DCA, No. 3D19-1393, 2/10/2021), 2021 WL 475105.
Fourth DCA reverses plaintiff’s judgment on hearsay grounds, but cautions plaintiff’s counsel against using impermissible closing argument comparing defendant to drug dealers. [Added 3/3/21]
Plaintiff recovered a substantial verdict (more than $10 million in compensatory and punitive damages) from Defendant, a tobacco company. Defendant raised several grounds on appeal, including admission of hearsay evidence and improper closing argument. The Fourth DCA reversed due to the admission of hearsay testimony that should have excluded.
The appeals court did not reach the merits of the improper argument allegations, but closed its opinion by expressing its concern: “[Defendant] also argues that Plaintiff’s counsel made improper comments during closing arguments comparing it to a drug dealer. Although we need not reach the merits of this issue in light of our disposition on the hearsay issue, we caution Plaintiff’s counsel ‘to be vigilant in crafting closing arguments that fall within the confines of permissibility.’ Philip Morris USA, Inc. v. Tullo, 121 So. 3d 595, 602 (Fla. 4th DCA 2013).” R.J. Reynolds Tobacco Co. v. Hamilton, __ So.3d __, 2021 WL 509654 (Fla. 4th DCA, 2/12/2021).
Fifth DCA criticizes prosecutor’s closing arguments but affirms based on totality of record. [Added 2/24/21]
Defendant was convicted of second degree murder. On appeal he contended that the prosecution’s closing arguments constituted fundamental error. The prosecutor suggested to the jury that it should “consider whether the victim ‘deserved to die’ or ‘needed to die.’”
The Fifth DCA observed that the arguments were “clearly improper” but affirmed after considering the “totality of the record.” Jones v. State, __ So.3d __ (Fla. 5th DCA, No. 5D19-2771, 12/31/2020), 2020 WL 7776479.
Despite affirming plaintiff’s judgment in tobacco case, Fourth DCA strongly condemned “inflammatory improper” plaintiff’s arguments implicitly comparing defendants to Nazis. [Added 2/5/21]
Plaintiff prevailed in a personal injury suit against tobacco companies (“Tobacco”). Tobacco appealed, contending that Plaintiff’s closing arguments were improper and required reversal. In strong language the Fourth DCA condemned the “inflammatory improper” arguments. The appeals court nevertheless affirmed the judgment because, in its view, “Plaintiff’s counsel’s intent to improperly inflame or prejudice the jury was not successful. In the Phase I closing arguments, Plaintiff urged the jury to return a verdict of $8 million for compensatory damages. Instead, the jury returned a verdict for approximately one-fourth of the amount requested: $2,107,211. Similarly, the punitive damage verdict after Phase II for approximately $3 million was substantially less than the amount requested.”
One of the improper arguments referred to the movie Schindler’s List, but the trial court overruled Tobacco’s objection and declined to grant a mistrial. The Fourth DCA agreed with Tobacco’s assertion that the argument implicitly linked Tobacco to the Nazis: “With all due respect to the trial court, the import of comparing the Engle findings to the ‘absolute good’ of Schindler’s List, listing 800 names which were going to be ‘pull[ed] out of the concentration camp and save their lives’ is a clear analogy comparing Tobacco to the Nazis. Even a person serving on a jury who had not seen Schindler’s List would make that connection, despite the fact that Plaintiff’s counsel did not specifically mention Germany, World War II, or the Nazis. . . . Although Plaintiff’s counsel did not use the term ‘Nazis,’ saving people from concentration camps certainly implies saving them from the Nazis.”
On rebuttal Plaintiff’s counsel referenced the book 1984 by George Orwell. Again, Tobacco objected but was overruled. The motion for new trial was denied. The appeals court believed that this argument also was improper.
The court rejected Plaintiff’s contention that the Schindler’s List argument was permissible because no court had specifically found it objectionable. “Significantly, although Plaintiff’s counsel’s argument was that he did not directly compare Tobacco to the Nazis, it is telling that counsel stressed that even if he had done that, our supreme court did not reverse on a similar argument in Engle. Counsel’s argument that because no court has directly said that the Schindler’s List analogy is improper is unavailing. To so hold would invite this and other courts to play ‘whack-a-mole’ by batting down every new and creative Nazi reference that can be devised. We conclude from the proffered explanation that Plaintiff’s counsel took a calculated risk that he could make such an oblique comparison to Tobacco acting like Nazis and get away with it.” (Footnote omitted.)
The appeals court pointedly observed that “[i]t is also disturbing that on at least four prior occasions, this court has addressed improper inflammatory closing arguments appealing to passion by” Plaintiff’s trial counsel, whom the court identified by name. (Emphasis by court.) The court closed with an urgent call to trial courts to ensure proper courtroom behavior and curb improper argument. A concurring opinion suggested that it was time for appellate courts to take stronger measures to address the problem: “By declining to reverse cases solely because of attorney misconduct, attorneys who flagrantly ignore the rules are permitted to benefit from their malfeasance. When there is no real sanction for such behavior and thus no effective deterrence, something must change. But make no mistake; the primary responsibility for curbing misconduct lies first and foremost with the trial judge. If trial judges took greater care to ensure that such actions are not tolerated, there would be no need for our court to be involved.”
R.J. Reynolds Tobacco Co. v. Kaplan, __ So.3d __ (Fla. 4th DCA, No. 4D18-2880, 12/9/2020), 2020 WL 7239575.
Fourth DCA chastises pro se litigant for lack of professionalism, affirming order enjoining litigant from further pro se representation. [Added 12/14/20]
The trial court terminated Appellant’s pro se status and required him to be represented by counsel in future proceedings after finding that Appellant’s “improper conduct was escalating and threatening” and interfered with the administration of justice.
The Fourth DCA affirmed, rejecting Appellant’s contention that his conduct was protected by the litigation privilege. The appeals court further stated: “Appellant’s pro se status does not insulate him from acting with the proper decorum and professionalism during litigation. As noted in [F.S. 454.18], ‘any person, whether an attorney or not . . . may conduct his or her own cause in any court of this state . . . subject to the lawful rules and discipline of such court . . . .’” (Emphasis by court). Miller v. Henderson Machine, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D19-700, 11/4/2020), 2020 WL 6479383.
Fourth DCA criticizes prosecutor’s statements during recess as “unprofessional” but affirms conviction. [Added 12/7/20]
Defendant was tried for burglary and aggravated assault. During a recess, defense counsel’s intern heard the prosecutor say, in the defendant’s presence, “that ‘the defense needs to go back to law school because literally impeaching a witness was first year 101. Sorry that I know the law.’” Defense counsel moved for a mistrial, but the court denied the motion because the jury hadn’t heard the prosecutor’s statement. Defendant was convicted. He moved for new trial on several grounds, including the prosecutor’s disparagement of defense counsel. The motion was denied.
On appeal, the Fourth DCA affirmed. “The comment, although unprofessional, was not made in front of the jury. Thus, it cannot be said that the comment deprived appellant of a fair trial, materially contributed to his conviction, was so harmful as to require a new trial, or was so inflammatory as to influence the jury. . . . Further, since [Defendant] did not testify, we cannot say if the prosecutor’s statement was heard by appellant or had any effect on the trial at all.”
Nevertheless, the appellate court warned counsel: “Although no reversible error occurred, comments that disparage the integrity of counsel are improper and highly inappropriate. We remind and caution all attorneys that they are held to a standard of conduct and have an obligation to uphold the integrity of the justice system.” Thurston v. State, __ So.3d __ (Fla. 4th DCA, No. 4D19-1191, 10/28/2020), 2020 WL 6301739.
Third DCA affirms order granting new trial based on defendant’s “intentional misrepresentations” and “improper and inflammatory” comments during closing argument. [Added 12/4/20]
During a case arising from an accident at a work site, defense counsel argued that there was no evidence that an accident had occurred. Defense counsel stated that there was no fire rescue report, despite the fact that the report had been introduced into evidence without objection. Based on counsel’s argument, the trial court erroneously removed the report from evidence in the middle of closing argument. The jury rendered a verdict for the defendant. Plaintiff moved for a new trial based on the false argument about the fire rescue report and on other defense comments during closing argument (e.g., calling plaintiff a “liar” and referring to plaintiff’s “lying mouth”).
The trial court granted the motion for new trial, stating in part: “The Court specifically finds that defense counsel intentionally misrepresented to the Court that there had been no such stipulation [to admission of the fire rescue report]. The Court was therefore led into error by defense counsel when it removed the Incident Report from evidence during closing argument. . . . Defense counsel’s improper argument, after obtaining the removal of the Fire Rescue Report from evidence under false pretenses, severely prejudiced the Plaintiff’s case and caused the Plaintiff not to receive a fair trial.” (Emphasis by appeals court.)
The Third DCA affirmed the order granting a new trial. “[T]he trial court did not abuse its discretion by granting [plaintiff’s] motion for new trial based on [defense] counsel’s improper and inflammatory statements and the misrepresentation as to the Fire Rescue Report.”
In a footnote, the court further stated: “As stated in the trial court’s order, defense counsel made other improper statements. We caution [defense] counsel to refrain from making such arguments in the future.” We The Best Music, Inc. v. Stafford, __ So.3d __ (Fla. 3d DCA, No. 3D18-1652, 10/28/2020), 2020 WL 6302401.
Although prosecutor made improper arguments in closing, arguments were not objected to and First DCA concludes they did not rise to level of fundamental error. [Added 9/15/20]
Convicted Criminal Defendant appealed, contending that the prosecution’s closing arguments constituted fundamental error. The arguments were not objected to at trial. The First DCA affirmed.
Defendant asserted that the prosecution shifted the burden of proof with the statement, “All this other stuff about who heard what or didn’t hear what is smoke and mirrors nonsense until you hear an explanation for that.” (Emphasis added.) The appeals court noted that, when read in context, the argument did not shift the burden of proof as the prosecution immediately thereafter reminded the jury that the State must prove all elements of the crime. The court, however, did state that the “smoke and mirrors” comment “may have been objectionable” but was not fundamental error.
The prosecutor also referred to Defendant as a “pedophile.” Use of this denigrating term has been held to be improper, but the term was used only once and, when viewed in the totality of the arguments made, did not rise to the level of fundamental argument. Jackson v. State, __ So.3d __ (Fla. 1st DCA, No. 1D19-83, 8/19/2020), 2020 WL 4814192.
In 2 cases, Supreme Court criticizes prosecution comments and arguments in voir dire and closing argument. [Added 5/18/20]
Smiley v. State, __ So.3d __ (Fla., No. SC18-385, 5/14/2020), 2020 WL 2478871. A convicted criminal Defendant appealed his conviction and death sentence. One of his arguments involved statements made by the prosecutor during voir dire. In questioning a potential juror who had identified himself as a strong proponent of the death penalty, the prosecutor asked if the juror knew that a first degree murder conviction did not result in an automatic death sentence. The prosecutor then stated that, of 60 first-degree murder cases pending in the circuit, only 9 of them were death-eligible. Defense counsel did not object. When a similar exchange occurred with another juror, defense counsel objected. The objection was sustained, but the court denied the motion to strike the jury panel.
The Supreme Court affirmed. The Court concluded that, even if precedents involving closing argument applied, the comments did not violate the principle described in Braddy v. State, 111 So.3d 810, 847 (Fla. 2012) (“the State may not add legitimacy to its case by vouching for the death penalty during its closing argument”). The Court stated explained that, when the statements were viewed in context, “was conveying the point that the law does not permit jurors to vote for the death penalty as an ‘automatic’ punishment for first-degree murder. . . . The prosecutor did not make an argument of any kind, much less a ‘direct, unambiguous appeal’ for the potential jurors to give weight to the State’s decision to seek the death penalty.”
The Court went on to criticize the comments, stating: “We do not condone the prosecutor’s comments. The State can and should explain the concepts of death eligibility, aggravation, and mitigation without telling the jury that the government seeks the death penalty only in a subset of first-degree murder cases. But the prosecutor’s statements here fall far short of what would be required to justify striking the venire and starting over again, and the trial court did not abuse its discretion in denying [Defendant]’s request.”
Bush v. State, __ So.3d __ (Fla., No. SC18-227, 5/14/2020), 2020 WL 2479140. A convicted criminal Defendant appealed his conviction and death sentence. Among his contentions was a claim that the prosecution’s closing argument constituted fundamental error. The prosecutor asked the jury to have “courage” and do “what is required” to impose the death penalty, which was “the hard thing, but the right thing.”
The Supreme Court disagreed and affirmed. “[T]he prosecutor’s argument does not rise to the level of fundamental error. Given the extremely weighty aggravation in this case, the prosecutor’s comments do not constitute fundamental error such that [Defendant]’s death sentence could not have been obtained without them.”
Nevertheless, the Court criticized the comments and urged prosecutors to refrain from similar arguments: “[W]e are concerned with the prosecutor’s appeal to the jurors ‘to have the courage’ to impose the death penalty. In the strongest terms, we urge prosecutors to avoid such argument, and we remind them of their solemn obligation ‘to seek only justice when life or death may be at stake.’”
Following contentious litigation involving discovery objections, Second DCA criticizes “shenanigans” displayed by counsel for both parties. [Added 5/5/20[
Following a contentious discovery dispute regarding work product privilege, one party petitioned the Second DCA for a writ of certiorari. The appeals court granted the petition, but took the occasion to criticize the conduct of counsel for both parties. “We sympathize with the trial court's frustration with the shenanigans displayed by both trial counsel in this case, and we note that this is not the only case that has come before this court wherein these two specific trial attorneys have displayed unprofessional behavior resulting in a waste of judicial resources and unnecessary expense to the parties. The trial court rightfully earmarked this case as one of its ‘problem’ cases and should not hesitate to exercise its inherent authority to sanction unprofessional behavior should case management efforts fail in the future. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002). (In a footnote the court referenced a prior opinion, Rodriguez v. Avatar Property & Casualty Ins. Co., 2020 WL 216009 (Fla. 2d DCA, Jan. 15, 2020).) Avatar Property & Casualty Ins. Co. v. Jones, __ So.3d __ (Fla. 2d DCA, No. 2D19-243, 3/13/2020), 2020 WL 1222732.
Despite “clearly improper” closing arguments by defense counsel in personal injury case, order for new trial is reversed because plaintiff failed to move for mistrial and the arguments did not constitute fundamental error. [Added 2/28/20]
During closing argument in a personal injury trial, the defendant’s counsel violated 2 separate orders in limine. After the jury returned a defense verdict, the trial court entered one omnibus order directing a liability verdict for plaintiff, granting a new trial, and sanctioning defense counsel.
Plaintiff’s motion for new trial was based on the ground that defense counsel willfully violated the orders in limine and that, consequently, the jury was deceived and influenced by considerations outside the record. The appeals court reversed the grant of a new trial, stating: “Critical to our analysis, however, is the fact that despite defense counsel’s violations of the trial court’s orders in limine, [Plaintiff] never moved for a mistrial. As a result, defense counsel’s misconduct was subject to a fundamental error analysis pursuant to the standard set forth in Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).” After analyzing the arguments, the court concluded: “Based on our review of the record, we conclude that the Murphy test cannot bemet in this case. Although defense counsel’s aforereferenced arguments were clearly improper, we cannot conclude that they were incurable or that they “so damaged the fairness of the trial that the public’s interests in our system of justice requires a new trial.” Orange County v. Ferguson, __ So.3d __ (Fla. 5th DCA, No. 5D18-2405, 1/31/2020), 2020 WL 498163.
Second DCA criticizes prosecutor’s closing argument but affirms conviction because unobjected-to argument did not constitute fundamental error. [Added 12/2/19]
Criminal Defendant was charged with sexual battery. During closing argument the prosecutor made several comments that were not objected to by defense counsel. Among other things, the prosecutor attacked the defense’s “deflection tactics,” suggested that the defense was throwing “spaghetti” around in hopes that “something will stick,” and compared the trial experience to “an abusive relationship where the abuser is always shifting the focus and trying to put the blame on the victim.”
Defendant was convicted. He filed a motion for new trial, “arguing that the prosecutor had improperly shifted the burden of persuasion to the defense, misstated the law, and denigrated [Defendant]’s assertion of a defense.” The motion for new trial was denied. Defendant appealed.
The Second DCA criticized the prosecutor’s comments, stating that “[w]e are very much troubled by the prosecutor's closing statements in [Defendant’s] trial. There can be no doubt that the State's spaghetti-throwing, smoke-and-mirrors, abusive relationship ‘arguments’ were improper in this criminal prosecution.” Further, the court noted that the remarks were not proper despite the context in which they appeared, and that, “[i]f anything, the context of this kind of criminal prosecution should have restrained a prosecuting attorney from employing the kind of loose bombast she chose to use.”
Nevertheless, the court was constrained to affirm, concluding: “While we cannot condone the comments that this assistant state attorney made during closing statements, neither can we conclude that they amounted to fundamental error.” Berouty v. State, __ So.3d __ (Fla. 2d DCA, No. 2D18-2251, 2/7/2020) (on rehearing), 2020 WL 605112.
Although prosecution made improper argument in closing, defense counsel did not move for mistrial after objection was sustained and comment did not rise to level of fundamental error. [Added 1/10/20]
Criminal Defendant was on trial for murder. During closing argument, the prosecutor told the jury that the state was asking for Defendant to be found guilty of first-degree murder “because it’s premeditated murder . . . Had that not been what he did we wouldn’t have charged him that way.” Defense counsel’s objection was sustained, but the defense failed to move for a mistrial and so did not preserve the issue for review. Accordingly, the Fourth DCA reviewed the remark for fundamental error.
The appeals court affirmed. The court “agree[d] that the comment was improper,” but concluded that it did not constitute fundamental error. Morrison v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-2635, 12/11/2019), 2019 WL 6720577.
Fourth DCA reverses conviction because prosecutor commented on defendant’s post-arrest silence. [Added 12/4/19]
Criminal Defendant was charged with murder. Testifying in his own defense, Defendant stated that he was at the bar where the murder occurred with his friend “Rico.” On cross-examination the prosecutor asked Defendant: “And today in 2018 is the first time we’re hearing about this guy name[d] Rico?” Defense counsel objected on the ground that the question was an improper comment on Defendant’s right to remain silent. The trial court overruled the objection. Defendant was convicted.
The Fourth DCA reversed the conviction. The prosecution may not comment on a defendant’s post-arrest silence, and the defendant does not waive this protection by choosing to testify at trial. The appeals court concluded that the prosecutor’s question, “which was neither limited in time nor scope, was broad enough to encompass both pre-arrest and post-arrest silence and therefore fairly susceptible of being interpreted as a comment on [Defendant’s] post-arrest right to remain silent.” Further, although the defense did not object on this ground, “the prosecutor’s question also improperly shifted the burden of proof by implying that [Defendant] had the burden of offering an exculpatory statement prior to trial.”
Finally, the court stated that, “[i]n light of the lack of physical evidence linking [Defendant] to the murder and the conflict between [Defendant’s] testimony and the testimony of the eyewitnesses, it cannot be said that the error was harmless.” Hopkins v. State, __ So.3d __ (Fla. 4th DCA, No. 4D18-2204, 11/20/2019), 2019 WL 6150999.
Supreme Court dissolves its Commission on Professionalism and Civility. [Added 6/5/19]
The Florida Supreme Court Commission on Professionalism and Civility has been dissolved by administrative order. The Commission was established in 1996 to “address the subject of professionalism among all members of Florida’s legal community” and to plan and implement programs and policies “to ensure that the fundamental ideals and values of the justice system and the legal profession are inculcated in all of the persons serving or seeking to serve the system.” At the same time, the Court created the Florida Bar Center for Professionalism (later named the Henry Latimer Center for Professionalism) to function in a manner consistent with the purpose of the Commission.
The Court observed that the Henry Latimer Center for Professionalism “has grown in prominence and scope until it has now subsumed the charge to the Commission.” In view of that development, the Court determined that “the fundamental ideals of professionalism are being carried out by The Florida Bar and the Center to such an extent that the Commission may be discontinued without affecting the goals the Commission was established to achieve. Accordingly, the Florida Supreme Court Commission on Professionalism and Civility is hereby concluded and dissolved.” In re: Florida Supreme Court Commission on Professionalism and Civility (Admin. Order, No. AOSC19-12, 3/12/2019).
Third DCA follows up on show cause order by referring lawyer to Florida Bar for statements made by lawyer about several trial and appellate judges. [Added 4/20/19]
The Third DCA ordered Lawyer to show cause why he should not be sanctioned for violations of the Rules Regulating The Florida Bar and the Florida Rules of Appellate Procedure. The found a reasonable basis to believe that Lawyer violated Rule 4-8.2(a) by making statements that Lawyer knew to be false, or made with reckless disregard, regarding the qualifications or integrity of several judges. The statements included accusing a named circuit judge of acting with “blatant disregard for the rule of law,” saying that the judge “recently escalated her illegal conduct,” calling an appellate court opinion dishonest, “pretextual and arbitrary.”
In his response, Lawyer acknowledged that his comments were “unprofessional and unwarranted” and that they were “inappropriate.” Lawyer “accept[ed] full responsibility for his inappropriate action.” Lawyer claimed that he had taken steps “to prevent any recurrence.”
If the conduct had been an isolated incident, the appellate court suggested that it may have closed the matter. But the court had previously sanctioned Lawyer for “similar unprofessional statements.” See Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D17-352, 12/5/2018), 2018 WL 6344710. In that prior matter, Lawyer asserted that his misconduct was an isolated incident. In this case, “while admitting his subsequent conduct was unprofessional, he asserts all such unprofessional conduct stopped once he received the prior order to show cause, which acted as a wake- up call to take steps to address the personal issues causing this conduct.”
The incidents at issue in the instant case occurred before the prior order to show cause had been issued. Nevertheless, the court referred the Lawyer to the Bar: “[B]ecause we are not in a position to ascertain the veracity of this latest explanation and this latest explanation is inconsistent with the previous one, we formally refer this matter to the Florida Bar for investigation.” Bank of America, N.A. v. Atkin, __ So.3d __ (Fla. 3d DCA, No. 3D18-1840, 4/10/2019), 2019 WL 1551555.
Third DCA criticizes conduct of counsel who willfully violated pretrial order excluding evidence. [Added 12/21/19]
Insured sued Insurer after coverage was denied. Insured’s house had been damaged by an explosion in a “marijuana grow house” across the street. Insured filed a motion in limine seeking to admit into evidence a letter from Insurer that allegedly admitted that the explosion caused damage. The trial court denied the motion. Nevertheless, at trial Insured’s counsel “directly referenced the letter in front of the jury.” Insurer objected, and Insured’s counsel then asked for the question to “be read back to the jury a second time before the objection was sustained.” (Emphasis by court.)
Insured moved for a mistrial. During the hearing on the mistrial motion, Insured’s counsel “admitted to willfully asking the question and argued that the question was fair game since the letter itself was not coming into evidence.” The court denied the mistrial motion. Insured appealed.
The Third DCA affirmed, finding no abuse of discretion. The court then addressed the conduct of Insurer’s counsel, stating that it was “troubled by Plaintiffs’ counsel’s blatant disregard of a court order, and we write to remind counsel that as an officer of the court, it is a lawyer’s duty to, among other things, ‘demonstrate respect for the legal system and for those who serve it’ and to ‘uphold legal process.’ R. Regulating Fla. Bar 4, Preamble; see also Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 492 (Fla. 3d DCA 2000) (‘The privilege to practice law requires attorneys to conduct themselves in a manner compatible with the administration of justice. While counsel does have an obligation to be faithful to their clients’ lawful objectives, that obligation cannot be used to justify unprofessional conduct by elevating the perceived duty of zealous representation over all other duties.’).” Citizens Property Ins. Co. v. Ballester, __ So.3d __ (Fla. 3d DCA, No. 3D16-1427, 11/29/2018), 2018 WL 6205021.
Third DCA sanctions and criticizes lawyer for impugning integrity of judiciary and filing frivolous motion. [Added 12/10/18]
The Third DCA issued an order directing Lawyer to show cause why the court should not impose sanctions on him for filings that violated the Rules Regulating the Florida Bar and the Florida Rules of Appellate Procedure. Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, N.A., 2018 WL 5733627 (Fla. 3d DCA, Oct. 31, 2018). After reviewing his response, the court determined that good cause had not been shown, and so imposed sanctions.
Lawyer violated Rule 4-8.2(a) by impugning the character and integrity of the trial court and the judges of the Third DCA. Pointing out that the applicable standard under this rule is “not whether the statement is false, but whether [Lawyer] had an objectively reasonably factual basis for making the statement.” The court concluded that there was no objectively reasonably factual basis for the statements Lawyer made in his motions for rehearing and rehearing en banc. Further, the court found that Lawyer filed a frivolous motion in violation of Fla.R.App.P. 9.410(a).
Despite acknowledging that Lawyer accepted responsibility and expressed remorse, the court emphasized the “extraordinary and corrosive nature or [Lawyer’s] attach on the integrity of the trial court and this court” and imposed the sanction of attorney’s fees in an amount not to exceed $5000 and referred him to the Florida Bar. “[Lawyer’s] conduct in the instant case violated not only the Rules Regulating the Florida Bar and the Rules of Appellate Procedure, but the most elementary norms of civility and professionalism. While judges and attorneys over the course of their career are subjected to isolated instances of incivility, the instant misconduct is beyond the pale, different not simply in degree but in kind. It is egregious misconduct which can be neither excused nor ignored.”
The court explained: “We are ever-mindful that, as a self-regulated profession, we must strive to maintain the public’s confidence in the independence and integrity of the judicial branch. We must also ensure that members of the Florida Bar comply with the rules of conduct, civility and professionalism that regulate our profession.”
Finally, in a footnote the court concluded that Lawyer had violated his duty of candor to the court under Rule 4-3.3(a)(3) “by failing to disclose to this court, in either his amended initial brief or reply brief (or by notice of supplemental authority) controlling law adverse to his position,” but chose not to sanction him for that violation. Aquasol Condominium Ass’n, Inc. v. HSBC Bank USA, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D17-352, 12/5/2018), 2018 WL 6326238.
Third DCA orders appellants’ counsel to show cause why he should not be sanctioned for “what appears to be a blatant, material misrepresentation” of record. [Added 10/29/18]
Clients and Lawyer appealed a trial court order imposing sanctions against them (50% for Clients, 50% for Lawyer). The sanctions had been imposed because appellants had “persisted in asserting a defense that they knew or should have known was not supported by fact or law.” The Fifth DCA affirmed because the appellants “failed to preserve the issue for appeal, as they entered into a stipulated final judgment which set forth the entitlement to and amount of the sanctions that were imposed.”
The appeals court further ordered Lawyer to show cause within 10 days why it should not sanction him “for making what appears to be a blatant, material misrepresentation in his brief regarding the trial court’s findings on the sanctions motion.” Lawyer’s brief expressly stated that the trial court had failed to make a specific finding that Clients or Lawyer knew or should have known that the claim was unsupported. The Fifth DCA, however, noted that the sanctions order explicitly contained such a finding. The appellate court continued: “Appellants’ misstatement . . . was quoted and described as being ‘patently false’ and ‘outrageous’ in Appellee’s answer brief, which laid out the same passages from the trial court’s order that we referenced. [Lawyer] seemingly passed on what most would have taken as an opportunity to set the record straight, as he chose not to file a reply brief or otherwise correct that misstatement.” Roberts v. PNC Bank, N.A., __ So.3d __ (Fla. 5th DCA, No. 5D17-2840, 10/19/2018), 2018 WL 5090843.
Conviction reversed because court impermissibly permitted prosecution to suggest that defense counsel influenced victim to change story between incident and trial. [Added 9/24/18]
Victim was a convenience store clerk. He was robbed by Defendant, who pulled an object from under his shirt and brandished it at Victim. A video camera recorded the incident. Victim told the police that the object was a knife. During the ride in the police car to the station after he was arrested, Defendant referred to the object as a knife. At trial, however, Victim testified that the object appeared to be more like a spatula. The prosecutor asked Victim how many times he had talked to defense counsel since the robbery. Defense counsel’s objection was overruled after the prosecutor explained that he asking for impeachment purposes. The prosecutor also asked whether Defendant’s mother had come to the store to talk with Victim. During closing argument the prosecutor argued that Victim had changed his story after talking with defense counsel. Defendant was convicted.
Defendant appealed, arguing that the trial court abused its discretion by allowing the prosecutor to repeatedly suggest through his questioning of [Victim] that defense counsel had somehow pressured or persuaded [Victim] to change his story and further abused its discretion by then allowing the prosecutor to reiterate that suggestion during closing argument.”
The Second DCA agreed and reversed. “‘Generally, comments by the State implying that the defense tampered with a witness without evidentiary support constitute reversible error.’ Penalver v. State, 926 So.2d 1118, 1129 (Fla. 2006).” It was improper under Penalver for the trial court to permit the prosecutor to impeach Victim by establishing that Victim’s “story had ‘suddenly’ changed after [Victim] had met with defense counsel.” The trial court then “compounded the error by allowing the prosecutor to exploit this improper line of questioning during rebuttal closing argument.”
The appeals court ruled that these errors were not harmless. Among other things, the argument “not only impermissibly impugned defense counsel’s integrity but went so far as to imply that defense counsel had committed witness tampering.” Taylor v. State, __ So.3d __ (Fla. 2d DCA, No. 2D16-5268, 9/21/2018), 2018 WL 4517227.
Third DCA affirms denial of anti-stalking injunction sought by one lawyer against another, determining that allegations presented professionalism issues best addressed under Florida Bar disciplinary system. [Added 8/22/18]
Lawyer Raulerson petitioned for an injunction against another lawyer, Font, for alleged stalking. The trial court dismissed the petition. Raulerson appealed. The Third DCA affirmed, concluding that the allegations in the petition primarily involve conduct that was outside the scope of the applicable statutes and “present certain issues best addressed under the disciplinary framework established by the Rules Regulating The Florida Bar.”
The appeals court observed that more than 90% of the allegations “are related to unprofessional conduct in litigation by Mr. Font.” Raulerson’s petition itself acknowledged that much of the complained-of conduct violated Rules of Professional Conduct 4-3.1 (frivolous claims or defenses), 4-3.2 (dilatory practices), and 4-3.4(d) (frivolous discovery requests). The court noted that “[t]ypical hallmarks of stalking and cyberstalking simply are not present,” and so indicated that the issues were more properly brought to the Bar or the trial court in which the unprofessional conduct occurred. While expressing sympathy for the petitioner’s position, the court commented that many of the actions alleged in the petition would require reporting to the Bar under Rule 4-8.3 and also stated: “It is also true that an attorney relatively new to the practice of law and high-conflict litigation (though the very term, when used as a reference to conduct between counsel rather than parties, is inimical to professional practice) should develop a ‘thick skin,’ but such an attorney is also entitled to refer improper conduct by opposing counsel to the Bar and, in a particular case, to the presiding judge. The trial court was correct that these would be a forum for determination of a lot of what you would like me to decide based on your pleadings.’” (Footnote omitted.)
The court, however, rejected the respondent’s argument that the relief sought in the petition was barred by the litigation privilege. “No Florida case has held, nor do we, that the litigation privilege applies to conduct otherwise meeting the definitional requirements of stalking or cyberstalking – any more than the litigation privilege bars an action for a battery committed by one attorney against another in the course of a legal proceeding. A privilege against defamation claims is not a privilege to cause substantial emotional distress for ‘no legitimate purpose’ or to threaten the safety of opposing counsel.” Raulerson v. Font, __ So.3d __ (Fla. 3d DCA, No. 3D17-2370, 8/1/2018) 2018 WL 3636525.
Fourth DCA reverses plaintiff’s judgment due to improper arguments. [Added 8/1/18]
Plaintiff sued Insurer for alleged breach of contract and obtained a judgment. Insurer appealed, contending that the trial court erred in denying its motion for new trial that was made on the ground that Plaintiff engaged in improper argument. The Fourth DCA reversed and remanded for a new trial.
Insurer asserted that during opening statement and closing argument Plaintiff had improperly emphasized Plaintiff’s payment of premiums. The appeals court agreed, noting that “it was improper for counsel to emphasize [Plaintiff]’s payment of premiums in this manner because the length of time that [Plaintiff] his premiums was irrelevant to whether [Insurer] breached its policy when it denied his claims.” Insurer pointed to 3 instances in which its objections to such comments were overruled. The appeals court concluded that these 3 preserved instances “while improper, arguably do not alone demonstrate that [Plainitff]’s long relationship with [Insured] became a centerpiece of the trial. (Emphasis by court.)
Plaintiff, however, also improperly implied that Insurer acted in bad faith in handling his claims. “[I]mplications of bad faith should not form a basis to determine liability in a first party insurance coverage action.” (Citations omitted.)
Adding to these improper arguments were comments by Plaintiff that improperly denigrated Insurer’s defenses. “[A]rguments which denigrate an opponent’s defenses by implying they are pretextual are improper.” (Citations omitted.) Homeowners Choice Property and Casualty Ins. Co. v. Kuwas, __ So.3d __ (Fla. 4th DCA, No. 4D17-2383, 7/5/2018), 2018 WL 3301890.
Fourth DCA reverses conviction because of prosecutor’s improper argument. [Added 7/11/18]
Defendant was convicted of grand theft. He appealed, contending that the prosecution’s improper arguments required reversal. In closing argument, the prosecutor implied that mere presence at the scene of a crime was sufficient to support a conviction, and the court erroneously refused to give Defendant’s requested instruction on “mere presence.” Additionally, the prosecutor referenced facts not in evidence and made several comments reflecting negatively on Defendant’s right to a jury trial.
Stating that “we cannot conclude that the cumulative effect of all of the comments were harmless beyond a reasonable doubt,” the Fourth DCA reversed the conviction.
The appeals court criticized the improper arguments: “While we do not hold that the prosecutor’s comments constituted a structural defect in the trial, we condemn the prosecutor’s pervasive use of [Defendant]’s ‘refusal to take responsibility’ by going to trial. Such comments denigrate the fundamental principles of the right to jury trial and presumption of innocence. When the prosecutor plans the entire theory of the case around attacking these principles, the defendant is denied a fair trial.” Gabriel v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-1363, 6/27/2018), 2018 WL 3198551.
Third DCA affirms conviction despite prosecution’s improper argument denigrating defense. [Added 5/31/18] -- Lammons v. State, __ So.3d __ (Fla. 3d DCA, No. 3D16-1864, 5/9/2018), 2018 WL 2122397.
$8 million judgment reversed because of improper closing arguments by plaintiff’s counsel. [Added 5/25/18] -- Domino’s Pizza, LLC v. Wiederhold, __ So.3d __ (Fla. 5th DCA, No. 5D16-2794, 5/11/2018), 2018 WL 2165224.
Fourth DCA reverses conviction due to prosecution’s improper closing argument. [Added 5/21/18] -- Lenz v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-198, 4/25/2018), 2018 WL 1956322.
Fourth DCA sanctions lawyer and client for pursuing frivolous appeal. [Added 1/11/18] -- Manzaro v. D’Alessandro, __ So.3d __ (Fla. 4th DCA, No. 4D16-3951, 11/1/2017), 2017 WL 4990586.
Despite affirming substantial verdict in tobacco case, Third DCA criticizes argument by Plaintiff’s counsel as “ill-conceived and improper." [Added 12/4/17] -- Philip Morris USA, Inc. v. Ledoux, __ So.3d __ (Fla. 3d DCA, No. 3D16-675, 10/18/2017), 2017 WL 4654965.
Supreme Court changes the name of its Commission on Professionalism by adding “civility.” [Added 10/12/17] -- In re: Florida Supreme Court Commission on Professionalism and Civility (Fla., Admin. Order No. AOSC17-89, 10/9/2017).
Closing argument suggesting that whether defendant was lying was test for guilt is criticized, but conviction is affirmed because error was not preserved. [Added 9/1/17] -- Simbert v. State, __ So.3d __ (Fla. 4th DCA, No. 4D16-1633, 8/23/2017), 2017 WL 3616394.
In affirming despite apparently improper closing argument that was not objected to, Fifth DCA emphasizes that it did not condone argument. [Added 8/21/17] -- Rasinski v. McCoy, __ So.3d __ (Fla. 5th DCA, No. 5D15-4423, 8/4/2017), 2017 WL 3318712.
In reversing substantial plaintiff’s verdict on other grounds, Fourth DCA expresses concern about comments made by plaintiff’s counsel during opening and closing arguments. [Added 7/27/17] -- Las Olas Holding Co. v. Demella, __ So.3d __ (Fla. 4th DCA, No. 4D16-231, 7/29/2017), 2017 WL 3085329.
Second DCA removes lawyer from case and refers him to Florida Bar for failing to comply with court orders and attendant delays. [Added 7/20/17] -- Odhiambo v. State, __ So.3d __ (Fla. 2d DCA, No. 2D15-3506, 6/16/2017), 2017 WL 2615845.
Prosecutor’s comments during closing argument may have been “ill-advised” but did not warrant reversal. [Added 6/29/17] -- Thompson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D14-1466, 5/31/2017), 2017 WL 2350142.
Third DCA cautions prosecutors and judges regarding arguments asking jury to “do justice” for victim, but affirms because improper comments were not objected to. [Added 6/7/17] -- Scott v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-2882, 5/3/2017), 2017 WL 1718804.
Third DCA affirms conviction despite improper closing arguments that were not objected to, but emphasizes that affirmance does not make prosecutor’s misconduct “awful but lawful.” [Added 4/24/17] -- Sampson v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-1662, 3/15/2017), 2017 WL 1018514.
After reversing convictions for other reasons, Third DCA comments on improper closing arguments by prosecution to prevent recurrence at retrial. [Added 4/17/17] -- Scala v. State, __ So.3d __ (Fla. 3d DCA, Nos. 3D111-1979, 3D11-1754, 3D11-1675, 3/15/2017), 2017 WL 1018487.
Prosecutor did not commit fundamental error by comparing criminal defendant and his co-defendants to “a pack of wolves” in closing argument. [Added 4/3/17] -- Williams v. State, __ So.3d __ (Fla. 1st DCA, No. 1D16-1807, 3/27/2017), 2017 WL1134817.
Fifth DCA criticizes filing of motion for rehearing that was “inappropriate and meritless.” [Added 3/27/17] -- Boardwalk at Daytona Development, LLC v. Paspalakis, __ So.3d __ (Fla. 5th DCA, No. 5D15-1944, 2/24/2017), 2017 WL 727671.
Fifth DCA reverses conviction and refers prosecutor to Florida Bar and local Professionalism Panel for “flood” of improper arguments that was so “deep, wide, and unrelenting” it “made a mockery of the constitutional guarantee of a fair trial.” [Added 3/7/17] -- Rodriguez v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-3622, 2/10/2017), 2017 WL 548649.
Third DCA criticizes prosecutor’s closing argument as unprofessional and calls for remedial actions by prosecutor’s office, but affirms conviction. [Added 3/4/17] -- Mora v. State, __ So.3d __ (Fla. 3d DCA, No. 3D15-1434, 2/15/2017), 2017 WL 608287.
First DCA reverses $16 million verdict in tobacco case because plaintiff’s counsel exhibited “flagrant disregard for the bounds of proper argument.” [Added 3/2/17] -- R. J. Reynolds Tobacco Co. v. Robinson, __ So.3d __ (Fla. 1st DCA, No. 1D15-0989, 2/24/2017), 2017 WL 729818.
First DCA warns lawyers that strict compliance with court orders is expected and violations will not be tolerated. [Added 1/30/17] -- DHL Express, Inc. v. Machin, __ So.3d __ (Fla. 1st DCA, No. 1D16-1325, 1/10/2017), 2017 WL 89067.
Although prosecution made multiple “questionable comments” that read like a “primer for prosecutors entitled ‘What Not to Say During Closing Argument,’” conviction was affirmed because comments failed to rise to level of fundamental error. [Added 1/18/17] -- Robinson v. State, __ So.3d __ (Fla. 4th DCA, No. 4D14-4270, 1/4/2017), 2017 WL 33709.
Third DCA refers lawyer to Local Professionalism Panel as sanction for improperly abandoning appeal. [Added 10/24/16] -- Nocari Investment, LLC v. Wells Fargo Bank, N.A., __ So.3d __ (Fla. 3d DCA, No. 3D16-1333, 10/19/2016), 2016 WL 6092069.
On rehearing en banc, Fourth DCA reverses $70 million judgment against tobacco defendants due to “repeated inflammatory arguments of plaintiff’s counsel.” [Added 10/3/16] -- R.J. Reynolds Tobacco Co. v. Calloway, __ So.3d __ (Fla. 4th DCA, No. 4D12-3337, 9/23/2016) (on rehearing), 2016 WL 5404053.
Fourth DCA affirms order granting defendants’ motion for new trial for in tobacco case after $2 million jury verdict, due to improper closing argument. [Added 9/26/16] -- Cohen v. Philip Morris USA, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D13-2681, 9/7/2016), 2016 WL 4649570.
Third DCA criticizes conduct of lawyer who was taken out of courtroom for interrupting the court and speaking out of turn during dependency proceeding. [Added 9/8/16] -- J.C.O. v. Dept. of Children and Families, __ So.3d __ (Fla. 3d DCA, No. 3D16-320, 8/24/2016), 2016 WL 4468112.
In reversing $11 million plaintiffs’ verdict for other reasons, Fourth DCA criticizes arguments by plaintiffs’ counsel and indicates they would warrant reversal if properly preserved. [Added 8/6/16] -- Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde, __ So.3d __ (Fla. 4th DCA, Nos. 4D14-2770, 4D14-2771, 8/3/2016), 2016 WL _______.
First DCA reverses verdict for defendant in personal injury case due to improper closing argument, and also criticizes plaintiff’s counsel for denigrating defense expert and defense counsel on Facebook. [Added 8/4/16] -- Boyles v. Dillard’s, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D14-5276, 7/25/2016), 2016 WL 3974849
Second DCA reverses finding of indirect criminal contempt against 2 lawyers, but urges every lawyer to make “civility and professionalism an integral part of his or her daily life.” [Added 7/25/16] -- Haas v. State, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-19, 2D15-321, 7/15/2016), 2016 WL 3766748.
Prosecutor’s “typification” in closing argument of defendant lawyer accused of stealing trust money from clients was improper but did not result in reversal of conviction. [Added 7/15/16] -- Bailey v. State, __ So.3d __ (Fla. 3d DCA, Nos. 3D14-1917, 3D14-1868, 3D16-1368), 7/13/2016), 2016 WL _______.
Second DCA adopts and publishes “Practice Preferences” for lawyers engaging in appellate practice in that District. [Added 6/29/16] --
In an effort to promote “best practices in appellate advocacy, the Second DCA has adopted and published its “Practice Preferences.” The court pointed out that this document provides only “suggestions” and does not “create any enforceable rights – for or against anyone.” Further, nothing in the Practice Preferences “is intended to supplant or modify any promulgated rule or law.” The Practice Preferences address 3 subject areas in appellate practice: (1) Notices, Motions, and Records; (2) Briefs and Brief Writing; and (3) Oral Argument.
The Practice Preferences are on the Second DCA website at: http://www.2dca.org/Clerk/Practice%20Preferences%20amended%20Oct%20'15%20formatted.pdf .
Uniform "Standards of Professional Courtesy and Civility" are adopted by the 11th, 15th, 17th, and 19th Florida circuits. [Added 5/20/16]
Four Florida circuits have adopted the same set of "Standards of Professional Courtesy and Civility." The Standards are now in place in the 11th, 15th, 17th, and 19th circuits. This allows the Professionalism Panels in each circuit to apply the same guidelines. For background information, see this story in the June 1, 2016, issue of the Florida Bar News.
Third DCA reminds lawyers of their obligation regarding “a fundamental tenant of appellate advocacy.” [Added 5/4/16] -- Hall v. Hall, __ So.3d __ (Fla. 3d DCA, No. 3D15-12, 4/27/2016), 2016 WL 1688611.
Fourth DCA reverses $5.8 million verdict in tobacco case due to improper argument by plaintiff’s counsel. [Added 4/18/16] -- R.J. Reynolds Tobacco Co. v. Gafney, __ So.3d __ (Fla. 4th DCA, No. 4D13-4358, 3/23/2016), 2016 WL 1128480.
Third DCA cautions counsel that improper argument can result in reversal of favorable verdict. [Added 4/18/16] -- City of Miami v. Kinser, __ So.3d __ (Fla. 3d DCA, No. 3D15-370, 3/23/2016).
After First DCA reverses dismissal of bank’s claim as sanction for its counsel’s discovery violations, concurring opinion points out harm to public’s confidence in judiciary caused by discovery abuses. [Added 3/13/16] -- Bank of New York Mellon v. Clark, __ So.3d __ (Fla. 1st DCA, No. 1D15-2250, 2/2/2016), 2016 WL 392787.
Supreme Court reverses murder and aggravated child abuse convictions based on numerous and “inflammatory” improper closing arguments at guilt phase. [Added 2/22/16] -- Cardona v. State, __ So.3d __ (Fla., No. SC11-1446, 2/18/2016).
Fifth DCA remains “troubled” by number of cases that it sees involving improper prosecutorial argument. [Added 2/16/16] -- Panchoo v. State,__ So.3d __ (Fla. 5th DCA, No. 5D14-4255, 1/22/2016), 2016 WL 264544
Second DCA criticizes counsel for not doing “professional and civil thing to do” and simply stipulating to entry of order rather than litigating. [Added 12/30/15] -- Leichester Trust, Turst Number 1920 v. Federal National Mortgage Ass’n, __ So.3d __ (Fla. 2d DCA, No. 2D15-1390, 12/23/2015), 2015 WL 9311434.
Fourth DCA questions professionalism of 2 lawyers who litigated and appealed award of fees arising from failure of one lawyer to remove other from service list. [Added 12/21/15] -- Houston v. McKnought-Smith, __ So.3d __ (Fla. 4th DCA, No. 4D14-4927, 12/16/2015), 2015 WL _______.
First DCA imposes sanctions against lawyer under F.S. 57.105(1) and Fla.R.App.P. 9.410(a) for filing frivolous appeal and failing to timely respond to show-cause order. [Added 12/21/15] -- In re A.T.H., __ So.3d __ (Fla. 1st DCA, No. 1D143370, 12/14/2015), 2015 WL 8558301.
Supreme Court reverses murder conviction based in part on “patently improper comments in the closing argument” by prosecutor who “pushed the envelope” before. [Added 12/20/15] -- Evans v. State, __ So.3d __ (Fla., No. SC12-2160, 11/12/2015), 2015 WL 7008526.
Fourth DCA imposes appellate fees as sanction under F.S. 57.105 for filing frivolous appeal, and criticizes counsel for making “an extremely misleading assertion.” [Added 12/16/15] -- Cosner v. Park, __ So.3d __ (Fla. 4th DCA, No. 4D14-2543, 11/25/2015), 2015 WL 7571466.
Supreme Court affirms conviction despite use of improper argument, but cautions prosecutors against comments that “cross the line from zealous advocacy to improper.” [Added 12/12/15] -- Orme v. State, __ So.3d __ (Fla., Nos. SC13-819, SC14-22, 12/10/2015), 2015 WL _______.
In probate litigation involving undue influence on party of lawyer, Second DCA observes that “repercussions from a single ethical lapse may carry far beyond a lawyer’s license to practice law.” [Added 12/9/15] -- In re Estate of Murphy, __ So.3d __ (Fla. 2d DCA, No. 2D14-4107, 11/6/2015), 2015 WL 6777216.
In dismissing appeal, Third DCA cautions lawyer and his law firm regarding ethical obligations of diligence and candor to the court. [Added 11/17/15] -- Andros Development Corp. v. Benitez, __ So.3d __ (Fla. 3d DCA, No. 3D15-1858, 11/4/2015), 2015 WL 6738922.
Lawyer whose failure to timely file appellate brief (apparently due to non-payment) resulted in Third DCA dismissing appeal is referred to Local Professionalism Panel. [Added 10/27/15] -- In re Estate of Murphy, __ So.3d __ (Fla. 2d DCA, No. 2D14-4107, 11/6/2015), 2015 WL 6777216.
Supreme Court disbars lawyer who had prior discipline for unprofessional conduct. [Added 10/17/15] -- Florida Bar v. Norkin, __ So.3d __ (Fla., SC11-1356, SC13-2480, 10/8/2015), 2015 WL 5853915.
Supreme Court amends “Code for Resolving Professionalism Complaints” on its own motion. [Added 9/11/15] -- In re: Amendments to the Code for Resolving Professionalism Complaints, __ So.3d __ (Fla., No. SC15-944, 9/10/2015), 2015 WL 5254238.
Following 3 show-cause proceedings, Second DCA publishes order referring lawyer to Florida Bar for conduct including apparent lack of candor to the court. [Added 8/31/15] -- Cooper v. State, __ So.3d __ (Fla. 2d DCA, No. 2D14-4027, 8/28/2015), 2015 WL 5062267.
Fifth DCA imposes fees and fines on 2 lawyers as sanctions for filing frivolous notice of lis pendens and baseless motion for extension of lis pendens. [Added 8/7/15] -- Massa v. McNutt, __ So.3d __ (Fla. 5th DCA, No. 5D14-351, 8/7/2015), 2015 WL 4660527.
Fifth DCA cautions lawyer about her duty to court to properly describe status of law being argued. [Added 8/4/15] -- Florida Peninsula Ins. Co. v. Ken Mullen Plumbing, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D14-3480, 7/31/2015), 2015 WL 4577201.
In concurring opinion, Third DCA judge criticizes conduct of lawyer who prosecuted “frivolous appeal." [Added 7/17/15] --Barnsdale Holdings, LLC v. PHH Mortgage Corp., __ So.3d __ (Fla. 3d DCA, No. 3D14-837, 7/15/2015), 2015 WL 4269918.
Fifth DCA criticizes professionalism of lawyer who based appellate argument on testimony of client, which trial court found to be less credible than testimony of state’s witness. [Added 6/24/15] -- Gonser v. State, __ So.3d __ (Fla. 5th DCA, No. 5D14-2146, 6/19/2015), 2015 WL 3753505.
Lawyer’s “abuse of the rehearing process” prompts Fifth DCA to refer lawyer to Florida Bar and issue order to show cause why he should not be monetarily sanctioned for filing the “meritless and insulting” motion. [Added 6/2/15] -- McDonnell v. Sanford Airport Authority, __ So.3d __ (Fla. 5th DCA, No. 5D13-3850, 5/15/2015), 2015 WL 2259430.
Second DCA imposes sanctions on lawyer, refers her to Bar, and orders her to self-report to local Circuit Professionalism Panel for failure to follow proper appellate procedures. [Added 5/13/15] -- Garcia v. State, __ So.3d __ (Fla. 2d DCA, Nos. 2D15-54, 2D15-403, 2D15-409, 5/1/2015), 2015 WL 1955674.
First DCA criticizes appellate counsel for failure to adequately identify and raise only meritorious claims on appeal. [Added 4/18/15] -- Broga v. Broga, __ So.3d __ (Fla. 1st DCA, No. 1D14-1364, 4/15/2015).
Lawyer ordered to personally pay appellate fees as sanction under F.S. 57.105 for prosecuting frivolous appeal. [Added 2/14/15] -- Faddis v. City of Homestead, __ So.3d __ (Fla. 3d DCA, No. 3D14-121, 2/11/2015).
Second DCA reverses verdict for defendants in personal injury case and remands for new trial, refusing to reward defense counsel’s “’gotcha’ tactics.” [Added 2/11/15] -- Andreaus v. Impact Pest Management, Inc., __ So.2\3d __ (Fla. 2d DCA, No. 2D14-1688, 2/6/2015).
Florida Bar Board of Governors adopts “Professionalism Expectations” for Florida lawyers. [Added 2/3/15] --
At its meeting in Tallahassee on January 30, 2015, the Florida Bar Board of Governors adopted a set of “Professionalism Expectations” for Florida lawyers. The Professionalism Expectations were prepared for the Board by the Bar’s Committee on Professionalism.
The Professionalism Expectations draw from both the Rules of Professional Conduct and “the long-standing customs of fair play, civil, and honorable legal practice in Florida.” The Professionalism Expectations provide guidance to lawyers in seven key areas: (1) Commitment to Equal Justice Under the Law and to the Public Good; (2) Honest and Effective Communication; (3) Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play; (4) Fair and Efficient Administration of Justice; (5) Decorum and Courtesy; (6) Respect for the Time and Commitments of Others; and (7) Independence of Judgment.
Click here to go to the Professionalism Expectations.
Supreme Court amends Code for Resolving Professionalism Complaints to grant immunity from civil liability to persons on Local Professionalism Panels and Circuit Committees on Professionalism. [Added 2/2/15] -- In re Amendment to the Code for Resolving Professionalism Complaints, __ So.3d __ (Fla., No. SC15-75, 1/29/2015), 2015 WL 357969.
Fifth DCA criticizes improper prosecutorial argument, urging lawyers to avoid devolving into “‘win at all costs’ mentality.” [Added 1/14/15] -- Brinson v. State, __ So.3d __ (Fla.5th DCA, No. 5D14-653, 1/2/2015), 2015 WL 24089.
In “textbook case of why the legislature authorized an aaward of fees against obstinate public entities such as Appellant,” Fifth DCA sanctions a county for filing frivolous appeal.Orange County v. Hewlings, __ So.3d __ (Fla. 5th DCA, No. 5D13-3775, 12/12/2014), 2014 WL 6990570.
Fourth DCA chastises lawyer for “lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court.” Lieberman v. Lieberman, __ So.3d __ (Fla. 4th DCA, No. 4D14-509, 11/26/2014).
Third DCA imposes 57.105 sanctions in equal shares against party and his lawyer for pursuing meritless appeal.Nordt v. Nordt, ___ So.3d __ (Fla. 3d DCA, Nos. 3D13-2415, 3D13-2845, 10/15/2014).
Lawyer hit with a sanction of appellate fees and referred to Florida Bar for pursuing frivolous appeal.Schwades v. America’s Wholesale Lender, __ So.3d __, 39 Fla.L.Weekly D1906 (Fla. 5th DCA, No. 5D13-3518, 9/5/2014), 2014 WL 4374891.
Fifth DCA criticizes state’s counsel in criminal appeal for ignoring relevant case law relied on by opposing party rather than trying to distinguish it.Schepman v. State, __ So.3d __ (Fla. 5th DCA, Nos. 5D13-2290, 5D13-2813, 9/19/2014).
Fifth DCA reverses criminal conviction for fundamental error in closing argument, calling prosecutor’s conduct “unprofessional.”Crew v. State, __ So.3d __ (Fla. 5th DCA, No. 5D12-4911, 8/29/2014).
Although lawyer’s behavior was “not professional,” trial court abused discretion in imposing sanctions for creating “atmosphere of anxiety and hostility” that disrupted compulsory medical exam.Rush v. Burdge, __ So.3d __ (Fla. 2d DCA, No. 2D13-1175, 7/11/2014). ~Rush v. Burdge, __ So.3d __ (Fla. 2d DCA, No. 2D13-1175, 7/11/2014).
Fourth DCA publishes opinion serving as “primer” for prosecutors and criminal defense counsel on improper arguments and failure to preserve error.Augustine v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-2881, 5/14/2014), 2014 WL 1908817.
Mumbling profanities in foreign language nets lawyer contempt conviction in case where “counsel for neither party distinguished himself by his conduct.” [Added 4/22/14]
In a case described by the Third DCA as one in which “counsel for neither party distinguished himself by his conduct,” Lawyer was found in direct criminal contempt of court for two offenses: a hand gesture allegedly directed toward opposing counsel; and “the mumbling, in Romanian, of profanities at opposing counsel.”
On appeal the Third DCA vacated the hand gesture conviction for insufficient evidence. The appeals court, however, affirmed the contempt conviction for the cursing in Romanian count. The court noted that Lawyer “somehow is under the impression that cursing in his native tongue is somehow less contemptuous than cursing in English.” The court disagreed. The court further noted that it “cannot quarrel with [Lawyer’s] self-assessment” that Lawyer had “blurted out” to the trial court: “I don’t know what common sense is. I lost that a long time ago.” The Third DCA referred Lawyer to the Florida Bar for disciplinary proceedings. Michaels v. Loftus, __ So.3d __ (Fla. 3d DCA, No. 3D13-1294, 4/2/2014).
Fifth DCA imposes 57.105 sanctions on party and her lawyer, noting that her arguments on appeal were as frivolous as her claim in the underlying case. Badgley v. SunTrust Mortgage, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D13-2500, 3/14/2014).
Supreme Court ups lawyer’s suspension to 2 years for unprofessional conduct toward judges and opposing counsel. [Added 11/4/13] -- Florida Bar v. Norkin, __ So.3d __, 38 Fla.L.Weekly S786 (Fla., No. SC11-1356, 10/31/2013), 2013 WL 5878901.
Despite granting motion to reinstate appeal it had dismissed, Fifth DCA reiterates referral of counsel to Florida Bar for ethical concerns. [Added 10/22/13] -- Montijo v. State, 123 So.3d 133 (Fla. 5th DCA 10/11/2013).
Subordinate lawyers remain responsible for complying with ethics rules even when acting at their superior’s direction. [Added 9/16/13] -- Briarwood Capital v. Lennar Corp., 125 So.3d 291 (Fla. 3d DCA 9/11/2013).
Third DCA calls on prosecutors and defense counsel to be more professional and urges trial courts to respond firmly to unprofessional argument. [Added 6/28/13] -- Fagans v. State, 116 So.3d 569 (Fla. 3d DCA 6/19/2013).
Supreme Court adopts “Code for Resolving Professionalism Complaints” effective immediately. [Added 6/7/13] -- In re: Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 6/6/2013).
Calling the quality of their legal work “disturbing,” Fifth DCA orders 3 lawyers to show cause why they should not be sanctioned. [Added 5/20/13] -- Hagood v. Wells Fargo, N.A., 125 So.3d 1012 (Fla. 5th DCA 6/28/2013).
Fourth DCA reverses convictions in 2 cases due to improper prosecutorial argument. [Added 3/13/13] -- In 2 recent cases the Fourth DCA reversed criminal convictions and remanded for new trial due to improper argument by the prosecution: Becker v. State, 110 So.3d 473 (Fla. 4th DCA 3/6/2013); Petruschke v. State, 125 So.3d 274 (Fla. 4th DCA 3/6/2013).
Second DCA criticizes lawyer’s improper argument but concludes it does not rise to level of fundamental error. [Added 3/7/13] -- Carnival Corp. v. Jimenez, 112 So.3d 513 (Fla. 2d DCA 2/27/2013).
Fifth DCA judge criticizes professionalism of assistant state attorney, saying State should “demand better” from its prosecutors. [Added 1/28/13] -- Benoit v. State, 113 So.3d 939 (Fla. 5th DCA 2013).
Fifth DCA criticizes level of professionalism demonstrated by lawyer representing client in criminal appeal. [Added 1/6/13] -- Bell v. State, 114 So.3d 229 (Fla. 5th DCA 2013).
Criticizing professionalism of trial counsel, Fifth DCA affirms order striking pleadings of lawyer’s client as sanction. [Added 9/25/12] -- Adams v. Barkman, 114 So.3d 1021 (Fla. 5th DCA 2012).
Fifth DCA orders imposition of sanctions and refers counsel to the Florida Bar for “willful non-disclosure of truthful facts in discovery.” [Added 8/15/12] -- Jones v. Publix Super Markets, Inc., 114 So.3d 998 (Fla. 5th DCA 2012).
Third DCA affirms section 57.105 fee award for "frivolous and dilatory tactics," but orders it paid in equal parts by party and his lawyer. [Added 8/1/12] -- Stratton v. 6000 Indian Creek, LLC, 95 So.3d 334 (Fla. 3d DCA 7/25/2012).
Fifth DCA criticizes professionalism of insurer’s counsel in filing, and then not withdrawing, motion to strike opponent’s answer brief. [Added 7/26/12] -- Lopez v. State Farm Florida Ins. Co., 114 So.3d 991 (Fla. 5th DCA 2012). Criticizing prosecutor’s professionalism,
Supreme Court reverses death sentence and remands for new penalty phase proceeding. [Added 7/18/12] -- Delhall v. State, 95 So.3d 134 (Fla. 7/12/2012).
Fourth DCA judge criticizes lawyers for pushing to exceed the bounds of permissible discovery. [Added 7/5/12] -- Coopersmith v. Perrine, 91 So.3d 246 (Fla. 4th DCA 6/27/2012).
Judge’s actions to control attorney behavior in courtroom are not grounds for disqualification, per Third DCA. [Added 6/29/12] -- Bert v. Bermudez, 95 So.3d 274 (Fla. 3d DCA 6/20/2012).
Fifth DCA dissenting opinion urges reversal due to lawyer’s unprofessional comments about opposing expert witness. [Added 6/20/12] -- Rogers v. Bhowani, 89 So.3d 1074 (Fla. 5th DCA 2012).
Supreme Court criticizes lawyer for disregarding “spirit” of rules governing post-trial communication with jurors. [Added 6/15/12] -- Van Poyck v. State, 91 So.3d 125 (Fla. 2/16/2012) (revised opinion).
Third DCA discusses need for candor to the court in ex parte proceedings. [Added 5/11/12] -- Velasquez v. Ettenheim, 89 So.3d 981 (Fla. 3d DCA 2012).
First DCA commends professionalism of criminal prosecutors who conceded error regarding Faretta issue. [Added 5/9/12] -- Bowers v. State, 85 So.3d 1230 (Fla. 1st DCA 2012).
Fifth DCA criticizes professionalism of lawyer who “strongly disagreed” with trial court’s order in family law case. [Added 5/7/12] -- Robinson v. Robinson, 88 So.3d 973 (Fla. 5th DCA 2012).
Third DCA cautions lawyers against filing or relying on extra-record documents and denies appellate fees for that reason. [Added 4/25/12] -- Velazquez v. South Florida Federal Credit Union, 89 So.3d 952 (Fla. 3d DCA 4/18/2012).
Citing "textbook example of legal chutzpah," Third DCA affirms denial of disbarred lawyer's charging lien for costs. [Added 2/15/12] -- Wingate v. Celebrity Cruises, LTD, 79 So.3d 180 (Fla. 3d DCA 2012).
Defense counsel in a civil case “stepped over the behavioral bounds” so often during trial that the Fifth DCA reversed the judgment. [Added 2/8/12] -- Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012).
Two District Courts of Appeal criticize the professionalism of counsel in mortgage foreclosure cases. [Added 12/29/11] -- Land Development Services, Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865 (Fla. 2d DCA 2011); Vilvar v. Deutsche Bank Trust Co. Americas, 83 So.3d 853 (Fla. 4th DCA 2011).
Supreme Court amends the Oath of Admission to the Bar to stress civility. [Added 9/14/11] -- In re: Oath of Admission to the Florida Bar, 73 So.3d 149 (Fla. 2011).
Third DCA criticizes what it euphemistically calls "candor" and "courage" of insurer and its counsel. [Added 8/19/11] -- Ramirez v. United Auto Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011).
Fifth DCA reverses verdict due to improper argument, and urges professionalism on retrial. [Added 8/12/11] -- City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011).
Fourth DCA criticizes prosecutor's closing argument as a "checklist" of improper argument. [Added 8/4/11] - Roberts v. State, 66 So.3d 401 (Fla. 4th DCA 2011).
In unusual case, Third DCA sanctions debtors and their counsel for abusing the legal process in a mortgage foreclosure case. [Added 6/28/11] -- JPMorgan Chase Bank, N.A. v. Hernandez, __ So.3d ___, 36 Fla.L.Weekly D1328 (Fla. 3d DCA, No. 3D10-1099, 6/22/2011), 2011 WL 2499641.
Lawyer who tried to buy life insurance policy without insurable interest is referred by 5th DCA to Florida Bar. [Added 5/15/11] -- TTSI Irrevocable Trust v. ReliaStar Life Ins. Co., 60 So.3d 1148 (Fla. 5th DCA 2011).
Fourth DCA criticizes lawyer for an "egregiously false" statement in reply brief. [Added 5/2/11] -- Pamphile v. State, 65 So.3d 107 (Fla. 4th DCA 2011).
Fourth DCA reverses judgment and criticizes "gotcha" tactics of insurer's defense counsel. [Added 4/28/11] -- Central Square Tarragon LLC v. Great Divide Ins. Co., __ So.3d ___ (Fla. 4th DCA, No. 4D09-4795, 7/6/2011) (on rehearing).
First DCA affirms grant of new trial due to improper argument by defense counsel. [Added 4/20/11] -- Linzy v. Rayburn, 58 So.3d 424 (Fla. 1st DCA 2011).
Third DCA criticizes counsel's use of discovery in insurance dispute as an attention-getting device. [Added 3/15/11] -- General Star Indemnity Co. v. Atlantic Hospitality of Florida, LLC, 57 So.3d 238 (Fla. 3d DCA 2011).
Court erred in not awarding 57.105 fees against bank in dismissed mortgage foreclosure case; lawyers' professionalism criticized. [Added 2/28/11] -- South Bay Lakes Homeowners Association, Inc. v. Wells Fargo Bank, N.A., 53 So.3d 1239 (Fla. 2d DCA 2011). NOTE: For another foreclosure case in which the conduct of counsel was criticized, see Jade Winds Ass'n, Inc. v. Citibank, N.A., 63 So.3d 819 (Fla. 3d DCA 2011).
Supreme Court disbars rather than suspends lawyer who practiced while suspended, with 3 concurring justices criticizing conduct of Bar prosecutor. [Added 2/5/11] -- Florida Bar v. Lobasz, 64 So.3d 1167 (Fla. 2011).
Fifth DCA orders lawyer to show cause why sanctions should not be imposed for filing improper motion for rehearing. [Added 1/15/11] -- Marion v. Orlando Pain & Medical Rehabilitation, 67 So.3d 264 (Fla. 5th DCA 2011).
Fifth DCA criticizes lawyer for filing appeal relating to plea process that he participated in without objection. [Added 12/17/10] -- Barreto v. State, 50 So.3d 738 (Fla. 5th DCA 2010).
Supreme Court adds to list of subjects that may be tested on Florida bar examination. [Added 12/10/10] -- In re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar, 51 So.3d 1144 (Fla. 2010).
Court makes UPL observation and disciplinary referral to Florida Bar in appellate opinion. [Added 11/29/10] -- Opella v. Bayview Loan Servicing, LLC, 48 So.3d 185 (Fla. 3d DCA 2010).
Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith. [Added 11/5/10] -- ivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).
Third DCA reverses substantial verdict based on improper argument by plaintiff's counsel. [Added 9/1/10] -- Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010).
Fourth DCA criticizes lawyers for failure to comply with candor-toward-the-tribunal rule. [Added 8/31/10] -- Dept. of Children and Families v. D.B.D., 42 So.3d 916 (Fla. 4th DCA, No. 4D09-4862, 8/25/2010).
Fourth DCA reverses criminal conviction due to prosecutor's improper closing argument. [Added 8/19/10] -- Wicklow v. State, 43 So.3d 85 (Fla. 4th DCA 2010).
Third DCA reverses another substantial verdict due to improper argument by same lawyer. [Added 8/16/10] -- Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA, No. 3D08-176, 8/4/2010).
Conduct resulting in finding of no probable cause can be used as aggravating factor in disciplinary case, per Florida Supreme Court. [Added 6/30/10] -- Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010).
First DCA cautions criminal defense lawyer against repeatedly raising "non-meritorious" arguments court has rejected before. [Added 6/23/10] -- Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010).
Third DCA criticizes law firm's actions but rules that firm is protected by litigation immunity. [Added 3/22/10] - Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010).
First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied. [Added 3/5/10] -- Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010).
Civil theft judgment against lawyer who left law firm and took clients with him is reversed, despite conduct called "loathsome" by DCA. [Added 2/10/10] -- Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010).
Fourth DCA comments critically on lawyers' professionalism in filing "emergency" motions. [Added 10/23/09] -- USAA Casualty Ins. Co. v. Pembroke Pines MRI, Inc., 24 So.3d 588 (Fla. 4th DCA 2009).
Trial notice is not "a hunting license" to engage in unprofessional behavior, Fifth DCA judge warns. [Added 9/22/09] -- Allen v. State, 17 So.3d 897 (Fla. 5th DCA 2009).
Supreme Court again criticizes prosecutor's closing argument, but it did not rise to level of fundamental error. [Added 9/1/09] -- Hayward v. State, 24 So.3d 17 (Fla. 2009).
Court may individually assess personal representative for attorney's fees resulting from frivolous litigation, even absent bad faith finding. [Added 6/21/09] -- Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009).
Criminal conviction reversed due to prosecution's improper closing argument. [Added 6/16/09] -- Fleurimond v. State, 10 So.3d 1140 (Fla. 3d DCA 2009).
Despite improper argument that one judge called "outrageous," Third DCA affirms criminal conviction. [Added 4/28/09] -- Williams v. State, 10 So.3d 218 (Fla. 3d DCA 2009).
Although criticizing lawyer's conduct as "reprehensible," First DCA reverses section 57.105 attorney's fees sanction. [Added 4/7/09] -- Campbell v. Dept. of Business and Professional Regulation, 9 So.3d 59 (Fla. 1st DCA 2009).
Fourth DCA affirms order sanctioning lawyer for bad-faith litigation conduct. [Added 11/29/08] -- Shniderman v. Fitness Innovations and Technologies, Inc., 994 So.2d 508 (Fla. 4th DCA 2008).
Third DCA reverses dismissal of case that was imposed as sanction for actions of plaintiff's lawyer. [Added 9/9/08] -- Burgess v. Pfizer, Inc., 990 So.2d 1140 (Fla. 3d DCA 2008).
Jury verdict is reversed due to counsel's statement during voir dire that he was a "consumer justice attorney" representing an individual rather than a "fancy company." [Added 8/26/08] -- Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008).
F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic." [Added 8/13/08] -- Yang Enterprises, Inc. v. Georgalis, 988 So.2d 1180 (Fla. 1st DCA 2008).
Expressing skepticism regarding some motions to dismiss alleging fraud on the court, Fifth DCA reverses dismissal order entered without evidentiary hearing. [Added 7/8/08] -- Bologna v. Schlanger, 995 So.2d 526 (Fla. 5th DCA 2008).
Lawyer who failed to appear at court-ordered mediation is sanctioned by court and referred to Florida Bar. [Added 6/18/08] -- Mojzisik v. Estrada, 983 So.2d 699 (Fla. 5th DCA 2008).
Fourth DCA is critical of criminal defense counsel's argument concerning state's conduct. [Added 6/18/08] -- State v. Martin, 982 So.2d 1288 (Fla. 4th DCA 2008).
Lawyer's conduct before judge is criticized, but finding that lawyer was guilty of direct criminal contempt is reversed. [Added 5/13/08] -- Wiggs v. State, 981 So.2d 576 (Fla. 5th DCA 2008).
Lawyer ordered to show cause why he should not be sanctioned for filing improper motion for rehearing and clarification. [Added 5/5/08] -- Ayala v. Gonzalez, 984 So.2d 523 (Fla. 5th DCA 2008).
Trial court's order granting summary judgment is reversed due to "incompetence" of party's original lawyer. [Added 4/8/08] -- Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008).
Verdict for slip-and-fall plaintiff is reversed due to "improper and unprofessional" argument and trial conduct by plaintiff's counsel. [Added 2/19/08] -- SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008).
Fifth DCA criticizes conduct of lawyers involved in placing irrelevant, prejudicial evidence before jury. [Added 1/10/08] -- Williams v. Lowe's Home Centers, Inc., 973 So.2d 1180 (Fla. 5th DCA 2008).
First DCA imposes attorney's fees under Fla.Stat. sec. 61.16(1) against appellant for filing frivolous appeal in domestic relations matter. [Added 11/30/07] -- Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007).
Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does. [Added 11/14/07] -- Alessi v. State, 969 So.2d 430 (Fla. 5th DCA, 2007).
Lawyer has no legal duty to stop someone from illegally taping conversation, but could face liability for disclosing or using tape. [Added 10/29/07] -- Horning-Keating v. Employers Insurance of Wausau, 969 So.2d 412 (Fla. 5th DCA 2007). NOTE: See also Dreggors v. Employers Ins. of Wausau, ___ So.2d ___, 32 Fla.L.Weekly D2727 (Fla. 5th DCA, Nos. 5D05-4047, 5D05-4048, 5D05-4049, 5D05-4050, 5D06-620, 5D06-621, 5D06-622, 5D06-623, 11/16/2007), 2007 WL 3390888.
"Highly improper, unprofessional argument" results in reversal of criminal conviction. [Added 9/20/07] -- Chavers v. State, 964 So.2d 790 (Fla. 4th DCA 2007).
Fifth DCA chastises lawyer who filed motion for rehearing on the basis that she did not understand reason for court's per curiam affirmance. [Added 8/24/07] -- Lowry v. State, 963 So.2d 321 (Fla. 5th DCA 2007).
Second DCA reminds lawyers to present facts and law "in an accurate and forthright manner." [Added 6/14/07] -- Brown v. State, 958 So.2d 1029 (Fla. 2d DCA 2007).
Lawyer commended for candor in seeking amount of fees orally agreed to rather than amount provided in written co-counsel contract [Added 4/6/07] -- Jay v. Trazenfeld, 952 So.2d 635 (Fla. 4th DCA 2007).
Trial court abused discretion by denying motion for new trial based on non-disclosure by juror (who happened to be a lawyer) of her personal litigation history. [Added 4/4/07] -- Pereda v. Parajon, 957 So.2d 1194 (Fla. 3d DCA 2007).
Judge did not err by allowing jurors to continue deliberations until after midnight over defense counsel's objection; lawyers criticized for unrealistic assessment of time required. [3/15/07] -- Green v. State, 951 So.2d 962 (Fla. 1st DCA 2007).
Fifth DCA cautions against "patently overbroad" discovery requests and urges lawyers to work together to "reasonably narrow" disputed discovery issues. [Added 1/23/07] -- Life Care Centers of America v. Reese, 948 So.2d 830 (Fla. 5th DCA 2007).
"Offensive remarks" and accusations contained in appellate briefs lead to award of Fla.Stat. sec. 57.105 attorney's fees against lawyer. [9/18/06] --Thomas v. Patton, 939 So.2d 139 (Fla. 1st DCA 2006).
Lawyer commended for professionalism in candidly accepting blame for conduct leading to imposition of sanctions. [Added 5/8/06] -- Doorstep Beverages of Longwood, Inc. v. Collier, 928 So.2d 482 (Fla. 5th DCA 2006) (on rehearing).
In appropriate case, appellee or its counsel may be sanctioned by appellate court for defending "indefensible" order of trial court. [Added 7/29/05] -- Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005).
Lawyer acted unprofessionally by making unsupported charges against trial judge. [Added 8/1/03] -- Shortes v. Hill, 860 So.2d 1 (Fla. 5th DCA 2003).