Fourth DCA reverses 2 criminal cases based on improper arguments by the State  [Added 7/3/08]

    Criminal conviction reversed.  In a criminal trial arising out of a home invasion, an issue arose concerning Defendant's tattoos.  During closing argument the prosecutor made comments indicating that the State had knowledge of when Defendant got the tattoos.  Defense counsel's objection was not sustained.  Defense counsel then moved for mistrial.  The motion was denied.  Defendant was convicted  On appeal the Fourth DCA reversed, holding that the State's comments were improper.  Although "wide latitude is permitted in arguing to a jury," counsel must confine themselves to facts and evidence and logical deductions therefrom.  Hosang v. State, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-2239, 6/25/2008).

    Involuntary commitment under Sexually Violent Predator Act reversed.  During closing argument in a trial for involuntary commitment under the Sexually Violent Predator Act, the State made a number of arguments to which defense counsel objected.  Some objections were overruled, and some objections were not specifically sustained or overruled (e.g., the trial court one stated "that the argument was 'closing argument, it's not evidence, I explained that to them'").  Defendant's motion for mistrial was denied.  On appeal the Fourth DCA reversed.  "We note the following improper arguments made by the state:  (1) [Defendant]’s low IQ "makes him that much more scarier to the children in this community," (2) [Defendant]’s mother 'didn’t bother to show up for the trial,' and (3) 'If you hesitate at all, 52% chance of general recidivating, but the kid he recidivates with it’s 100% chance.  If you hesitate at all, you’re putting every child he comes in contact with at risk.'  We find that the cumulative effect of these improper closing argument remarks entitles [Defendant] to a new trial."  The court also reminded trial judges that they must make specific rulings on objections.  Powell v. State, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-1264, 6/25/2008).

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]

    Plaintiff, a nurse, was injured when she slipped and fell while exiting Defendant mall with her patient.  After a jury trial, judgment was entered for Plaintiff.  Defendant appealed. 

    The Third DCA reversed due to the trial conduct of Plaintiff's counsel.  "Unfortunately, a simple slip and fall case unraveled into an improper attack on [Defendant], its witnesses, and its defense counsel.  This Court has repeatedly denounced such litigation tactics.  Beginning in voir dire and ending with rebuttal closing, [Plaintiff]'s counsel, [], engaged in a series of improper and unprofessional attacks on [Defendant] and its counsel that included the following allegations:  (1) failure to produce an incident report; (2) failure to produce all photographs depicting the scene of the accident; (3) defense counsel's collusion with witnesses; (4) a general frivolous defense argument."  (Footnote omitted.)

    The court noted that there was no evidence that the defense hid evidence or acted improperly, and that the argument of Plaintiff's counsel in this regard constituted fundamental error.  Furthermore, the "personal opinions" offered by Plaintiff's counsel, "[s]tanding alone," required a new trial.  Plaintiff's counsel also used an impermissible "golden rule" argument. 

    Finally, in a footnote the court pointed out that "[a]pparently, [Plaintiff's counsel] has engaged in similar but less pervasive conduct before other courts.  See Target Stores v. Detje, 833 So.2d 844, 846 (Fla. 4th DCA 2002) (Klein, J., dissenting) ([counsel]'s arguments were 'clearly improper and unethical')."  SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d 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]  --  Ventimiglia v. TGI Fridays, Inc., 980 So.2d 1087 (Fla. 4th DCA 2007).

Two DCAs address discovery orders involving attorneys who wished to view or videotape neuropsychological examinations of their clients.  [Added 9/14/07]  --  Florida Department of Transportation v. Piccolo, 964 So.2d 773 (Fla. 2d DCA 2007); Bacallao v. Dauphin, 963 So.2d 962 (Fla. 3d DCA 2007) (on rehearing).

Although condemned by Florida 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).

Reasonable misunderstanding between lawyers regarding settlement negotiations constitutes "excusable neglect" sufficient to vacate default judgment; in this case, seeking default without notice was unethical.  [Added 12/8/06]  --   Gables Club Marina, LLC v. The Gables Condominium and Club Association, Inc., 948 So.2d 21 (Fla. 3d DCA 2006).

Alleged repeated but mostly unobjected-to violations of ethics rules against improper jury argument did not warrant granting of new trial.  [Added 10/27/06]  --  Bradley v. Southern Baptist Hospital of Florida, Inc., 943 So.2d 202 (Fla. 1st DCA 2006).

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).

In appropriate case, appellee or its counsel may be sanctioned by appellate court for defending "indefensible" order of trial court.  Boca Burger, Inc. v. Forum, 912 So.2d 561 (Fla. 2005).

Lawyer's false representations to client about case's progress were not "good cause" to prevent dismissal for lack of prosecution.  Havens v. Chambliss, 906 So.2d 318 (Fla. 4th DCA 2005).

Where appropriate, case may be dismissed with prejudice as sanction for lawyer's conduct even without client's involvement.  Ham v. Dunmire, 891 So.2d 492 (Fla. 2004).

Equitable tolling doctrine not applicable despite lawyer's failure to immediately move to dismiss case filed by opposing counsel in wrong firm.  HCA Health Services of Florida v. Hillman, 906 So.2d 1094 (Fla. 2d DCA 2004).

Lawyer's decision to assist another lawyer on last day of limitations period was not "emergency" warranting equitable tolling of statute.  Williams v. Albertson's, Inc., 879 So.2d 657 (Fla. 5th DCA 2004).

Series of "willful" discovery violations that "substantially prejudiced" defendant supports trial court's dismissal of criminal information.  State v. Gillis, 876 So.2d 703 (Fla. 3d DCA 2004).

Cumulative effect of counsel's objected-to remarks requires reversal of $3 million jury verdict.  Bocher v. Glass, 874 So.2d 701 (Fla. 1st DCA 2004).

Where discovery violations resulting in sanction of dismissal with prejudice were solely due to lawyer, dismissal reversed as too severe.  Jimenez v. Simon, 879 So.2d 13, 29 Fla.L.Weekly D1063 (Fla. 2d DCA 2004).  NOTE:  The Fifth DCA recently reached a similar conclusion in American Express Co. v. Hickey, 869 So.2d 694 (Fla. 5^th DCA 2004).  See also Rohlwing v. Myakka River Real Properties, Inc., 884 So.2d 402 (Fla. 2d DCA 2004) (dismissal with prejudice reversed because trial court did not make findings required by Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993)).

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).