jury trial

New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein on December 16, 2017
Trial Perspectives / Comments Off on New Trial Warranted for Prejudicially Inflaming the Jury

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial.

An example of this can be found in the case TT of Indian River, Inc. v. Fortson, 42 Fla. L. Weekly D2655a (Fla. 5th DCA 2017). This case involved an automobile accident where liability had been stipulated. The defendant was not interested in trying the liability of the case. The jury trial was ONLY as to damages. Liability was therefore irrelevant. Nonetheless, at trial, the plaintiff’s counsel, over the objection of the defense, called a corporate representative of the defendant and inquired as to issues concerning liability to create the perception that the defendant engaged in indifference and misconduct regarding the underlying automobile accident. The plaintiff also used the term of “guilt” to describe the defendant’s stipulation as to liability and the term of “innocence” to describe the plaintiff’s conduct.   After a final judgment was rendered against the defendant in accordance with the jury’ verdict, the defendant appealed for a new trial on damages. The appellate court agreed reversing the final judgment and mandating a new trial on damages due to conduct designed to inflame the jury.

When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.  Moreover, as this court has recognized, it is improper to refer to “guilt” or “innocence” at a civil trial on negligence

Fortson, supra (internal quotations and citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Prejudicial Closing Argument Could Result in Mistrial / New Trial

Posted by David Adelstein on March 27, 2016
Standard of Review, Trial Perspectives / Comments Off on Prejudicial Closing Argument Could Result in Mistrial / New Trial


Closing argument is a very, very important part of jury trials to sum up the evidence in the context / theme of your case based on the applicable law. It is your last opportunity to talk directly to the jury about the theme of your case. Check out this article for the purpose of closing argument.

While lawyers are afforded latitude in presenting closing argument, improper and prejudicial argument could result in an appellate court granting a new trial. The opposing party must, however, timely object to the improper and prejudicial argument in order to properly preserve this objection for appeal. This is typically done at the time of the prejudicial argument with the opposing counsel moving the trial judge to declare a mistrial. See R.J. Reynolds Tobacco Co. v. Gafney, 41 Fla.L.Weekly D744b (Fla. 4th DCA 2016) quoting Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006) (“If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.”). The standard of review on appeal for a motion for a mistrial or new trial based on improper closing is an abuse of discretion standard of review. Gafney, supra.

In Gafney, a wrongful death case against tobacco manufacturers, the plaintiff’s lawyers made improper comments to the jury asking the jury to “send a message” to the tobacco companies through their compensatory damage award in the verdict. The plaintiff’s lawyers also insinuated in closing argument that the defendant’s lawyers were involved in a conspiracy to cover-up the addictive nature of smoking cigarettes.

“Sending a Message” Closing Argument


The Fourth District held that “sending a message” argument is inappropriate when asking the jury to send a message with respect to compensatory damages (since this is the purpose of punitive damages and not compensatory damages):


“Send a message” arguments have been defined as those that ask a jury to “award money not based on the proof supporting the proper recoverable damages allowed in a wrongful death action, but to remedy wrongful, intentional, as opposed to negligent, conduct,” and those that “suggest[ ] to the jury that a significant verdict will send a message to stop [such] experiences from happening and will make others less likely to act irresponsibly.” The overwhelming weight of Florida jurisprudence informs us that “send a message” arguments are clearly inappropriate when utilized in a way that links the “sending of the message” to a compensatory damage award, and not to the entitlement to, or amount of, punitive damages.


Exhorting a jury with a “call to action” to use its verdict to “speak loud and speak clear” via a compensatory damage award, as was done repeatedly here, is improper. … However, today we clarify that even when both claims are at issue, a plaintiff may not utilize “send a message” and conscience of the community arguments when discussing whether the plaintiff should be compensated, due to the potential for the jury to punish through the compensatory award. Appellee’s counsel’s comments in this case served only to divert the jurors’ attention from the proper consideration.

Gafney, supra (internal citation omitted).

Ad Hominem Attack on Opposing Counsel


The Fourth District also held that closing argument that insinuated that defendant’s counsel was involved in a conspiracy was inappropriate. Closing argument is not intended to attack an opposing counsel for being part of an improper scheme:

There is no question that appellee’s counsel went outside the broad parameters of permissible closing argument when he turned his commentary on opposing counsel. These statements were totally irrelevant to the issue of appellants’ liability. The insinuation that appellants’ attorneys were engaged in a conspiracy with either the defendants or third parties to mislead, conceal, or manipulate as part of an on-going scheme did not merely push the envelope, but instead went wholly beyond the pale.


Accusations of wrongdoing by opposing counsel, such as those made in this case, would likely be improper even if made solely to a judge. Here, the comments achieved no other purpose than to discredit appellants’ attorneys in the eyes of the jury, planting in the juror’s minds the thought that the attorneys themselves were engaged in nefarious behind-the-scenes acts….

Gafney, supra.

In another example, you can check out this article for improper closing argument leading to a new trial in a trial against an insurance company.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Jury Trial Considerations: Directed Verdict and the Verdict Form

Posted by David Adelstein on June 27, 2015
Appeal, Trial Perspectives / Comments Off on Jury Trial Considerations: Directed Verdict and the Verdict Form


Previously, I discussed a motion for directed verdict and, then, a motion to set aside a jury’s verdict. This is an important procedural vehicle to know because a party opposing a claim generally always moves for a direct verdict. In some instances, the court reserves ruling on the directed verdict to see how the jury decides the case. If the jury enters a verdict in favor of the party moving for a directed verdict (e.g., the defendant) then the court does not need to rule on the motion for directed verdict (it becomes moot).

Recently, I wrote an article about a case involving a jury trial as to the enforcement of an oral contract. During the jury trial, the party opposing the oral contract’s enforcement–the defendant–moved for a directed verdict. The trial court reserved ruling on the motion for directed verdict to see how the jury would decide the case. The jury entered a verdict in favor of the plaintiff. Based on the verdict, however, the trial court granted the motion for directed verdict and entered judgment in favor of the defendant. The plaintiff appealed the trial court’s ruling and the First District Court of Appeal reversed the trial court and directed judgment in favor of the plaintiff consistent with the jury’s verdict.

The First District explained as it pertains to directed verdicts:

When a trial court overrides a jury’s verdict and directs entry of judgment for the non-prevailing party, our review is de novo, meaning we review the record to determine whether any view of the evidence supports the jury’s verdict…For this reason, if there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.”

Loper v. Weather Shield Manufacturing, 40 Fla. L. Weekly D1492a (Fla. 1st DCA 2015) (internal citation and quotation omitted).

The case also references a special interrogatory verdict form which is a verdict form that asks the jury to answer specific questions relating to a plaintiff’s claim against a defendant and a defendant’s affirmative defenses.   In this case, a special interrogatory verdict form was submitted to the jury with carefully crafted questions. The jury answered questions on the verdict form benefitting the plaintiff that led to its verdict in favor of the plaintiff.

As an example of carefully crafted questions on a special interrogatory verdict form, the jury answered yes to the following questions pertaining to an owner’s breach of an oral contact claim against a manufacturer (again, check out the article for more facts regarding the case):

  1. Did Michael Loper [owner] and Weather Shield Manufacturing, Inc. [manufacturer], enter into an oral agreement regarding the windows at the Loper home?
  1. Did at least one of the parties (Michael Loper and/or Weather Shield Manufacturing, Inc.) fully perform his or its responsibilities under the oral agreement and do so within one year of that agreement?
  1. Did Michael Loper: (a) orally agree not to file a lawsuit against Weather Shield Manufacturing, Inc., in exchange for replacement of all defective windows and a new ten-year warranty; (b) reasonably rely in good faith on Weather Shield Manufacturing, Inc., to reduce this oral agreement to writing; and (c) reasonably rely on Weather Shield Manufacturing, Inc.’s words and action to change his position to his detriment?
  1. Did Weather Shield Manufacturing, Inc. breach the oral agreement?
  1. Did Michael Loper sustain damages as a result of Weather Shield Manufacturing, Inc.’s breach of the oral contract?

Loper, supra.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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