Florida - TRIAL CONDUCT (and Sanctions)
Fourth DCA condemns “trial by ambush” tactics in reversing plaintiff’s judgment. [Added 7/30/19]
Plaintiff sued for injuries allegedly suffered in a 2014 auto accident. Plaintiff’s expert reviewed the MRI from that accident, but did not review Plaintiff’s MRI from a prior 2010 accident. At deposition the expert testified that he had never seen the 2010 MRI and did not consider it necessary in reaching his opinion. In the opening statement at the trial, Defendants’ counsel told the jury that, in contrast, the defense’s expert had viewed both MRIs. “Only then, long after the discovery deadlines and in the middle of trial after defense counsel had committed to a certain line of defense, did plaintiff’s counsel show his expert the 2010 MRI” and elicit testimony about it.
The defense moved to exclude Plaintiff’s expert from testifying about the 2010 MRI or comparing it to the 2014 MRI. The trial court initially granted the motion to exclude, concluding that the testimony would be “completely prejudicial” and “not fair” to Defendants. After a break, the court reversed its ruling and allowed the testimony. The jury rendered a verdict for Plaintiff. Defendants appealed.
The Fourth DCA reversed, concluding that the trial court abused its discretion in allowing Plaintiff’s expert to offer the challenged testimony. In Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), the Supreme Court ruled that, when an undisclosed witness is offered for testimony at trial, the focus should be on the potential prejudice to the objecting party. “Prejudice” refers to the surprise on the party, and does not depend on the nature of the testimony. The Binger rule “has been extended from undisclosed witnesses to disclosed witnesses who offer previously undisclosed testimony.” (Citation omitted.) Defendants “were confronted with new and additional undisclosed testimony during trial and after opening statements which pertained to the comparison of two different MRIs as well as Dr. Myers’s conclusions regarding the content of the two MRIs,” after they had relied on their expert being the only witness who viewed the two MRIs. The undisclosed testimony in these circumstances “is the type of ambush-based prejudice that Binger seeks to prevent.”
The appeals court summarized: “As far back as 1993, this court wrote that ‘[a]lthough we thought it was generally accepted that civil trials are not to be ambushes for one side or another, we are confronted here by such tactics used by the plaintiff to the prejudice of the defense.’ Grau v. Branham, 626 So.2d 1059, 1059 (Fla. 4th DCA 1993) (citation omitted). In this case twenty-six years later, we are once again confronted with the same type of tactics. These ‘trial by ambush’ tactics were wrong in 1993, and they remain wrong today.” Gurin Gold, LLC v. Dixon, __ So.3d __ (Fla. 4th DCA, No. 4D18-2156, 7/10/2019), 2019 WL 2998515.
While not condoning closing argument of plaintiffs’ counsel in tobacco case, Third DCA affirms judgment for plaintiffs and acknowledges that arguments must be viewed in context of this 3-week, high-stakes trial. [Added 2/13/19]
Plaintiffs obtained a large compensatory damages verdict (almost $15 million net) in a 3-week trial against Defendant tobacco company. Defendant appealed on grounds including allegedly improper closing argument. The Third DCA affirmed, emphasizing that its analysis of the arguments at issue necessarily must consider the specific context of the particular trial: “While we do not condone the closing argument comments to which [Defendant] objected, we conclude that the complained-of comments fall short of denying [Defendant] its right to a fair trial. In reviewing the comments, it is important to remember their context. This case was a nearly three-week-long bifurcated Engle progeny case involving claims for intentional and non-intentional torts and prayers for non-economic compensatory damages flowing from Plaintiffs’ loss of companionship and protection and pain and suffering, as well as for punitive damages. Arguments inappropriate in a simple negligence case may be appropriate concerning record evidence of a parties’ intentional misconduct in the context of a claim for punitive damages.”
In one of the arguments, Plaintiffs’ counsel pointed out that the $450,000 deaths annually from smoking would equal 3 airline crashes per day for a year. The appeals court considered this argument provocative and even somewhat inflammatory,” but noted that the comparison was “mild” considering that Defendant’s corporate representative testified to that many annual deaths or more. The court distinguished cases relied on by Defendant; the evidence was admissible and Plaintiffs’ counsel did not offer personal opinion.
Another argument involved counsel comparing the decedent’s efforts to quit smoking to “all their power, all their money” that Defendant spent on advertising to convince people to smoke and to lobby for favorable laws. The appeals court stated that “[w]hen these comments are placed in the unique context of the evidence presented at this trial, the comments related to ‘wealth’ and ‘power’ do not merit reversal.”
Finally, the court rejected the assertion that Plaintiffs’ argument impermissibly denigrated the defense. Some of the arguments “approached the boundary,” but did not warrant reversal.
The court summarized: “Plaintiffs’ counsel’s comments during his closing argument in this case may be considered to be close to the limits of what is acceptable. Indeed, they may well justify reversal in a different context. In the context of the evidence of this particular trial, however, we find that the comments did not rise to a level that requires reversal. This conclusion is particularly compelling here because the trial spanned nearly three weeks and closing argument ended on a Friday. The jury returned the following Monday, engaged in two days of deliberation, and found in favor of [Defendant] on the question of punitive damages and concealment; awarded less than the compensatory amount requested for the [decedent’s] daughter; and attributed a higher percentage of comparative negligence to [decedent] than what Plaintiffs’ counsel argued for in closing. These actions by the jury strongly indicate the jury was not inflamed, prejudiced, or improperly mislead by closing arguments.” R.J. Reynolds Tobacco Co. v. Schleider, __ So.3d __ (Fla. 3d DCA, No. 3D15-1634, 12/26/2018), 2018 WL 6786635.
Although court may be able to sanction insurer for egregious or bad-faith conduct that lawyer hired by insurer commits while defending insured, it would have to make detailed factual findings describing offending conduct by insurer. [Added 8/3/18]
Insurance carriers FCCI and Empire were in litigation. The trial court disqualified FCCI’s lawyer for misconduct. The court then, under its inherent authority to impose sanctions for egregious or bad-faith conduct, awarded attorney’s fees against FCCI “based on its finding that FCCI ‘did direct and orchestrate’ the attorney’s misconduct.” FCCI appealed.
The Second DCA reversed. The trial court did not make specific findings of egregious or bad-faith conduct on the part of FCCI. “We have found no case that would preclude a trial court from sanctioning an insurer for egregious or bad-faith conduct that the insurer committed while performing its duty to defend the insured. Nonetheless, in such circumstances, the trial court cannot ignore that it should rarely invoke this inherent authority, see Bitterman [v. Bitterman], 714 So. 2d [356 (Fla. 1998)] at 365, and should do so only after complying with Moakley [v. Smallwood, 826 So.2d 221 (Fla. 2002)]. Thus, although we do not rule out that an insurer could be liable for the egregious or bad-faith conduct of the attorney that it has hired to represent its insured, it would not be sufficient for the trial court to find simply that the insurer had taken an active role in the representation of the insured because no authority provides an exception to the requirement that the trial court make detailed factual findings describing the specific egregious or bad-faith conduct committed by the party against whom sanctions are imposed.” FCCI Ins. Co. v. Empire Indemnity Ins. Co., __ So.3d __ (Fla. 2d DCA, No. 2D17-1749, 7/13,2018), 2018 WL 3404044.
Distinguishing a recent line of cases, the Fourth DCA affirms a plaintiff’s judgment despite closing argument by plaintiff’s counsel disparaging the tobacco company for defending itself. [Added 12/23/16] -- R.J. Reynolds Tobacco Co. v. Odom, __ So.3d __ (Fla. 4th DCA, No. 4D14-3867, 11/30/2016), 2016 WL 6992162.
Summary judgment granted against clients of lawyer who returned a few minutes late from restroom is reversed. [Added 12/6/16] -- Natiello v. Winn-Dixie Stores, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D15-2501, 11/16/2016), 2016 WL 6678678.
Court not required to use “magic words ‘bad faith’” in order sanctioning lawyer for repeatedly violating court orders and putting inadmissible evidence before jury. [Added 11/29/16] -- Robinson v. Ward, __ So.3d __ (Fla. 2d DCA, Nos. 2D14-4799, 2D14-5359, 11/9/2106), 2016 WL 6609585.
Fourth DCA affirms judgment even though juror violated trial court’s order by commenting on social media while trial was pending. [Added 11/17/16] --Murphy v. Roth, __ So.3d __ (Fla. 4th DCA, No. 4D14-4830, 10/5/2016), 2016 WL 5803658.
Court erred in dismissing party’s case as sanction based on its counsel’s conduct in different case. [Added 11/9/16] -- Reverse Mortgage Solutions, Inc. v. Unknown Heirs, __ So.3d __ (Fla. 1st DCA, No. 1D16-966, 10/7/16), 2016 WL 5874434.
Lawyer convicted of indirect criminal contempt and referred to Bar for violating court’s confidentiality order. [Added 8/10/16] -- Clover v. State, __ So.3d __ (Fla. 5th DCA, No. 5D15-1714, 8/5/2016), 2016 WL 4150232.
Court erred in ordering party’s lawyer, who was not counsel of record, deposed. [Added 6/18/15] -- Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, __ So.3d __ (Fla. 3d DCA, No. 3D14-2904, 6/17/2015) (on motion for clarification), 2015 WL 3759570.
Second DCA reverses verdict for defendants in personal injury case and remands for a 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).
Fourth DCA publishes opinion serving as “primer” for prosecutors and criminal defense counsel on improper arguments and failure to preserve error. [Added 5/27/14] -- Augustine v. State, __ So.3d __ (Fla. 4th DCA, No. 4D12-2881, 5/14/2014), 2014 WL 1908817.
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. [Added 3/19/14] -- Badgley v. SunTrust Mortgage, Inc., __ So.3d __ (Fla. 5th DCA, No. 5D13-2500, 3/14/2014).
Fifth DCA observes that spouse’s offensive conduct during litigation, not during the marriage, may support section 57.105 sanctions. [Added 2/20/14] -- Shadwick v. Shadwick, __ o.3d __ (Fla. 2d DCA, No. 2D12-6235, 2/14/2014).
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).
Letter of protection between plaintiff and her treating physician who testified as an expert is admissible to show physician’s potential bias. [Added 9/5/13] -- Pack v. Geico General Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 9/4/2013).
Trial court lacked authority to impose monetary sanctions on party for filing Bar complaints against opponent’s lawyers. [Added 8/26/13] -- Kass Shuler, P.A. v. Barchard, 120 So.3d 165 (Fla. 2d DCA 8/23/2013).
Court abused its discretion in paternity case by sanctioning father for challenging recommendations in psychologist’s report. [Added 8/21/13] -- J.D.C. v. M.E.H., 118 So.3d 933 (Fla. 2d DCA 8/7/2013).
On rehearing, Fourth DCA affirms trial court’s dismissal of case for fraud on the court. [Added 8/12/13] -- Herman v. Intracoastal Cardiology Center, 121 So.3d 583 (Fla. 4th DCA 8/7/2013) (on rehearing).
Fifth DCA sanctions law firm’s lawyers for their "negligent" work on “frivolous” initial appellate brief and improper reply brief. [Added 7/1/13] -- Hagood v. Wells Fargo, N.A., 125 So.3d 1012 (Fla. 5th DCA 6/28/2013).
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., 112 So.3d 770 (Fla. 5th DCA 5/17/2013).
Court erred in denying motion for new trial based on alleged juror misconduct without conducting juror interview. [Added 5/2/13] -- Hillsboro Management, LLC v. Pagono, 112 So.3d 620 (Fla. 4th DCA 4/24/2013).
Lawyers whose bookkeeper embezzled millions in client funds are disbarred for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Defense counsel’s violation of a motion in limine prohibiting mention of plaintiff’s visit to a lawyer on the day of the accident results in reversal. [Added 3/20/13] -- Howard v. Palmer, 123 So.3d 1171 (Fla. 4th DCA 3/13/2013).
Third DCA awards fees under section 57.105(1) as sanction against insurance company and its counsel. [Added 2/8/13] -- Albelo v. Southern Oak Ins. Co., __ So.3d __, 38 Fla.L.Weekly D301 (Fla. 3d DCA, No. 3D11-3012, 2/6/2013), 2013 WL 440199.
Court abused discretion in dismissing complaint based on alleged fraud on the court. [Added 12/31/12] -- Rocka Fuerta Construction Inc. v. Southwick, Inc., 103 So.3d 1022 (Fla. 5th DCA 2012).
Lawyer who appealed 57.105 attorney’s fee sanction by arguing 1979 version of statute now faces imposition of appellate sanctions. [Added 12/17/12] -- Robbins v. Rayonier Forest Resources, L.P., 102 So.3d 737 (Fla. 1st 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).
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).
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).
Motion to disqualify judge for denying continuance and “demeanor” with counsel properly denied as legally insufficient. [Added 12/20/11] -- Ramos v. State, 75 So.3d 1277 (Fla. 4th DCA 2011).
Criminal conviction reversed because court abused its discretion in denying motion to substitute counsel and for short continuance. [Added 12/20/11] -- Alvarez v. State, 75 So.3d 420 (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.
Court erred in imposing sanctions on party due to conduct of its expert witness. [Added 2/8/11] -- State Farm Mutual Auto. Ins. Co. v. Swindoll, 54 So.3d 548 (Fla. 3d DCA 2011).
Court erred in forbidding party from calling any witnesses other than herself and from introducing documents due to her lawyer's conduct. [Added 2/5/11] - Cossio v. Arrondo, 53 So.3d 1141 (Fla. 3d DCA 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).
Per Supreme Court, party whose objections to lawyer misconduct at trial are sustained must move for mistrial to preserve issue for motion for new trial. [Added 12/17/10] -- Companioni v. City of Tampa, 51 So.3d 452 (Fla. 2010).
Rules of Judicial Administration do not require lawyer to disclose names of persons who own and control lawyer's corporate clients. [Added 12/17/10] -- Empire World Towers, LLC v. CDR Creances, S.A.S., 48 So.3d 1033 (Fla. 3d DCA 2010).
Fifth DCA approves sanctions against parties and their counsel after the parties failed to appear at court-ordered mediation. [Added 12/9/10] -- Mash v. Lugo, 49 So.3d 829 (Fla. 5th DCA 2010).
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. [Added 12/3/10] -- Quintero v. Kenyon, 49 So.3d 808 (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] -- Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010).
Court's failure to inquire into defense counsel's potential conflict is not subject to harmless error rule. [Added 9/14/10] -- Hannah v. State, 42 So.3d 951 (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 2010).
JCC does not have statutory authority to strip employer/carrier of defenses on ground that its lawyer engaged in fraudulent conduct. [Added 6/1/10] -- McArthur v. Mental Health Care, Inc./Summit Claims Center, 35 So.3d 105 (Fla. 1st DCA 2010).
Lawyers and client sanctioned for appealing non-appealable order, and court notes that client may have conflict-free counsel when sanction amount is determined on remand. [Added 5/19/10] -- Maradriaga v. 7-Eleven, 35 So.3d 109 (Fla. 1st 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).
Florida Supreme Court vacates death sentence due to prosecutorial misconduct. [Added 1/20/10] -- Johnson v. State, 44 So.3d 51 (Fla. 2010) (revised opinion).
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).
Comments by insurer's lawyer concerning allegedly fraudulent workers' compensation claim were non-actionable as statements of pure opinion. [Added 8/26/08] -- Dreggors v. Wausau Ins. Co., 995 So.2d 547 (Fla. 5th DCA 2008).
Jury verdict reversed due to counsel's statement during voir dire that he was "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).
Defense verdict in slip and fall case reversed due in part to counsel's argument that violated Rule of Professional Conduct 4-3.4(e). [Added 12/30/2007] -- entimiglia v. TGI Fridays, Inc., 980 So.2d 1087 (Fla. 4th DCA 2007).
Although condemned by Supreme Court as improper, counsel's argument in tobacco case did not rise to level of reversible error. [Added 12/21/06] -- Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (revised opinion).
Lawyers who change addresses should file notice of the change in each active litigation file. [Added 10/24/06] -- Richardson v. Chase Manhattan Bank, 941 So.2d 435 (Fla. 3d DCA 2006).
Plaintiff had responsibility to do own investigation before naming Fabre defendant, and could not rely on assertions of opponent to avoid Fla.Stat. sec 57.105 fee award. [Added 8/2/06] -- Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006).
Prosecutor's Biblical reference during cross-examination did not constitute fundamental error, per Florida Supreme Court. [Added 7/7/06] -- Farina v. State, 937 So.2d 612 (Fla. 2006).
Lawyer sanctioned for phoning in to mediation rather than personally appearing as ordered. [Added 2/28/06] -- Hernando County School Board v. Nazar, 920 So.2d 794 (Fla. 5th DCA 2006).
Supreme Court eliminated distinction between "active" and "passive" record activity for purposes of determining dismissal for failure to prosecute. Wilson v. Salamon, 923 So.2d 363 (Fla. 2005).
Client's absence from defense counsel's ex parte disclosure to court of counsel's concerns about his ability (due to anticipated bar complaint and client perjury) to be effective violated client's due process rights. Frett v. State, 864 So.2d 577 (Fla. 2d DCA 2004).
Lawyer's suspension for failure to maintain CLE credits is not "good cause" for client's failure to prosecute case. Orsonio v. Fuller, Mallah and Associates, 857 So.2d 973 (Fla. 3d DCA 2003).