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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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Leading Questions Forming Basis of Appeal

Posted by David Adelstein on August 07, 2016
Trial Perspectives / Comments Off on Leading Questions Forming Basis of Appeal

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During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony.  Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking.   Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections.  But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct examination.  If a lawyer can get away with leading a witness during direct examination to elicit the testimony needed, the lawyer will do so and probably should do so. 

When do leading questions in a civil trial become so over-the-top to warrant a new trial? They really do not! “[L]eading questions do not result in an error that will warrant a new trial.” Moore v. Gillet, 96 So.3d 933, 944 (Fla. 2d DCA 2012).

In Moore, during the defense, direct examination of a treating doctor was being conducted. The doctor was serving as a defense witness. The trial court sustained numerous objections that the defense was leading the defense witness. At some point, and despite there not being an objection or motion for mistrial by the plaintiff, the trial court terminated the defense’s questions of its witness due to the persistent leading questions.

At the conclusion of the trial, the trial court ordered a new trial upon motion by the plaintiff. One of the reasons the trial court granted the new trial was due to the defense’s persistent leading questions. The defense appealed the trial court granting a mistrial.

With respect to leading questions, the appellate court held that the issue was not properly preserved for appeal because the plaintiff did not move for a mistrial at the time of the questions. The trial court ceasing the defense’s examination of a defense witness due to leading questions was a severe remedy that the plaintiff agreed to. The plaintiff did not make a contemporaneous motion for mistrial based on the leading questions, but rather, accepted the trial court terminating the defense’s direct examination.   But, even if the plaintiff did contemporaneously move for a mistrial, the leading questions would not warrant a new trial because leading questions generally do not form the basis of error for purposes of an appeal.

 

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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Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein on November 05, 2015
Evidence / Comments Off on Recipient of Trial Court’s Error Needs to Prove Harmless Error

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I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant).

Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling the appellant (losing party) to a new trial.

In Maniglia v. Carpenter, 40 Fla. L. Weekly D2485c (Fla. 3d DCA 2015), the plaintiff sued the defendant over injuries sustained in a car accident.   Less than a month after the accident, the plaintiff was involved in a golf tournament where he got inebriated and drove the golf car into the street, collided with a car, fell off the golf cart, and then got into a physical altercation with the police.   The defendant naturally wanted to introduce these events during trial for multiple reasons. First, the defendant wanted to establish that the plaintiff never told his treating chiropractor about these events, which could have affected the plaintiff’s credibility to the jury. And, second, these other events could have served as a jury instruction relating to other intervening causes for the plaintiff’s injuries.

The trial court granted a motion in limine finding that these events were unfairly prejudicial to the plaintiff. As a result, the jury never heard the true nature of the events and a verdict was entered against the defendant.

On appeal, the appellate court held that it was error for the trial court to exclude this evidence since the evidence was probative and was not outweighed by the danger of unfair prejudice. Based on this error, the appellate court held that the plaintiff was required to prove that the error was harmless – there was no reasonable possibility that the error contributed to the jury’s verdict. The plaintiff, however, was unable to meet this burden meaning that the defendant was entitled to a new trial.

 

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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