Third DCA reverses substantial verdict based on improper argument by plaintiff's counsel.  [Added 9/1/10]

    Plaintiff was injured when a granite tile in an elevator fell on her.  Defendants admitted liability and the case was tried only on damages.  The jury awarded more than $413,000 to Plaintiff.  Defendants appealed, contending (1) that they were entitled to a new trial due to improper argument by Plaintiff's counsel and (2) that there was no evidence to support the portion of the judgment for future medical expenses.

    The Third DCA agreed.  "[Defendants] argue that [Plaintiff]’s counsel’s improper comments and arguments were so prejudicial and inflammatory as to deny them a fair trial.  Given that [Defendants] admitted liability prior to trial, we agree with [Defendants]."  Due to the improper argument, the court reversed and remanded for a new trial "solely on the issues of past medical expenses [$13,434 of the judgment] and past [$100,000] and future [$150,000] pain and suffering."  (The court also struck the $120,000 award for future medical expenses.) 

    Among other things, Plaintiff's counsel:  disparaged Defendant's defense of the case; suggested that Defendants be punished for contesting the claim; referred to Defendants' "corporate greed;" suggested that the accident scene had been tampered with; argued that the jury had to punish Defendants; and made "value of life" arguments.  Some of these arguments were not objected to at trial.  Nevertheless, the court concluded:  "Although 'a single improper remark or argument might not be so prejudicial as to require reversal,' [Carnival Corp. v.] Pajares, 972 So. 2d [973] at 979 [ (Fla. 3d DCA 2007) ], we find here that the cumulative effect of [Plaintiff]’s counsel’s numerous improper comments and arguments operated to deprive the appellants of a fair trial.  See Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 259 (Fla. 1st DCA 1996) ('[T]he collective import of counsel’s personal injections, and irrelevant and inflammatory remarks, was so extensive as to have prejudicially pervaded the entire trial, precluding the jury’s rational consideration of the evidence and resulting in an unfair trial.').  Accordingly, a new trial is warranted."  Fasani v. Kowalski, __ So.3d ___ (Fla. 3d DCA, Nos. 3D09-2299, 3D09-2350, 8/25/2010).

Fourth DCA criticizes lawyers for failure to comply with candor-toward-the-tribunal rule.  [Added 8/31/10]

    Mother (a lawyer with the Dept. of Children and Families ("DCF")) and Father (also a lawyer) were involved in a heated divorce and custody matter.  On September 18 DCF filed a petition for a prevention of child abuse injunction pursuant to Fla.Stat. sec. 39.504(1).  A hearing was held the same day.  The hearing judge was not the family court judge who was familiar with the "hostile dynamics of this family."  The hearing was held without reasonable notice to Father.  Father attempted to appear by telephone, but DCF objected.  None of the DCF lawyers or other personnel informed the hearing judge of the family court proceedings, or of the fact that Mother's previous attempt to obtain an injunction had been denied.  The judge entered an injunction that took effect immediately.  It barred Father from any contact with his children, prevented him from being within 500 feet of the children's residence or school, and ordered him to undergo substance abuse and psychological counseling.

    Although section 39.504(2) calls for a hearing "on the next day of judicial business," such a hearing was not held until October 20.  The hearing was held before the family court judge, who had ordered the injunction case transferred to her.  The judge dismissed the injunction.  DCF appealed.

    The Fourth DCA affirmed.  The appellate court observed:  "To anyone familiar with the concept of due process, the abbreviated September 18 'hearing,' consuming but eight pages of transcript, is shocking."  At the October 20 hearing, DCF had failed to justify continuation of the injunction.

    In a footnote, the court was critical of the conduct of the DCF lawyers at the September 18 ex parte hearing:  "We note that Florida Rule of Professional Conduct 4-3.3(c) provides:  '(c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.'  Had the lawyers involved advised Judge Rebollo [who presided over the September 18 hearing] of the ongoing proceedings in the family court, he might well have consulted with the family court judge before signing the injunction."  Dept. of Children and Families v. D.B.D., __ So.3d ___ (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]

    Defendant was convicted of robbery with a firearm.  On appeal the Fourth DCA reversed her conviction and remanded for a new trial.  The court stated that "[t]he cumulative effect of improper prosecutorial comments in closing argument which elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel and improperly bolstered the credibility of a key witness all combine to compel this result."

    The court noted that attacks on opposing counsel can result in reversal even when they are not objected to:  "Although defense counsel raised objections to these comments which the court overruled, it is worthy of note that it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury; even in the absence of a contemporaneous objection, such comments about opposing counsel made during closing argument are fundamentally erroneous.  Owens-Corning Fiberglas Corp. v. Crane, 683 So. 2d 552, 555 (Fla. 3d DCA 1996)."  Wicklow v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D08-4250, 8/4/2010).

Third DCA reverses another substantial verdict due to improper argument by same lawyer.  [Added 8/16/10]

    In 2008 the Third DCA reversed a verdict in a civil case due to improper argument by Lawyer.  SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008).  Improper arguments by Lawyer again caused the court to reverse a verdict for Lawyer's client (this time in excess of $1.3 million).  The court commented that the case was "meritorious" (the defendant caused the accident and the trial was on damages only), but concluded that "[u]nfortunately, plaintiff’s counsel engaged in litigation tactics, which, taken individually and in combination, indisputably require reversal."

    As in the prior case, Lawyer engaged in "an improper attack on [the defendant] . . . and its defense counsel."  Id., at 999.  Lawyer's "improper litigation tactics" included the following:  "1. Improper appeal to the passion and sympathy of the jury in opening statement.  2. Improperly convincing the trial judge to limit defense counsel’s cross-examination of [plaintiff]’s expert, [].  3. Improper character attack during cross-examination of main defense expert, [].  4. Improper and prejudicial closing argument."

    Among other things, Lawyer made reference to his client's alleged debt due to medical expenses (see Samuels v. Torres, 29 So. 3d 1193 (Fla. 5th DCA 2010), made a reference to the jurors writing a "blank check" (see Hollenbeck v. Hooks, 993 So.2d 50 (Fla. 1st DCA 2008), did not keep closing argument confined to the evidence and inferences drawn from the evidence, used a "Golden Rule" argument, and attacked the defense as "frivolous" and "try[ing] to fool you."  The court observed that "[t]hese attacks are as much reversible here as they were in SDG Dadeland."

    The court concluded:  "[W]e close by reminding all counsel, whoever they might be, that inflammatory and prejudicial comments and improper conduct – including advancing legal arguments which counsel know are not supportable – will not be condoned by this Court."  (Emphasis by court.)  Chin v. Caiaffa, __ So.3d ___ (Fla. 3d DCA, No. 3D08-176, 8/4/2010).

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]

    In a workers' compensation case the Judge of Compensation Claims ("JCC") denied Claimant's claims for benefits on the ground that she engaged in fraud.  Claimant appealed, contending inter alia that the JCC erred by not ruling on Claimant's assertion that the employer/carrier ("E/C") and its lawyer "committed fraud in their handing of this matter."

    The First DCA affirmed.  Fla.Stat. sec. 440.105(4)(b)1. provides that it is unlawful for any person to "knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment" under Chapter 440.  The statute further provides that an employee who commits fraud may have his or her claims denied by the JCC.  There is no corresponding provision authorizing the JCC to "determine whether an attorney or carrier has violated section 440.105, nor does it give the JCC any authority to impose sanctions for such violations."

    The appellate court concluded:  "We certainly do not condone fraud by anyone involved in the workers’ compensation system.  But it is not within our power to read into chapter 440 authority that the Legislature has not, for whatever reason, given to the JCCs.  Accordingly, because the JCC lacked the authority to grant the relief sought by Claimant, the final order is AFFIRMED."  (Footnote omitted.)  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]

    Lawyers represented Appellant in a workers' compensation case.  Lawyers appealed a non-appealable order of the Judge of Compensation Claims ("JCC") (the order "was neither a final order nor a non-final appealable order").  The appeal was dismissed by the First DCA for lack of jurisdiction.  The appellate court then ordered Lawyers to show cause why sanctions should not be imposed.  "Because Appellant’s attorneys’ response to this court’s show cause order continues to evince ignorance of the rules of appellate procedure and case law, attorneys’ fees pursuant to section 57.105, Florida Statutes (2009), are hereby imposed against Appellant’s attorneys and Appellant.  Because section 57.105 does not authorize the exclusion of Appellant from the responsibility to pay a portion of the fee, on remand for determination of a reasonable fee, the JCC should also determine whether Appellant should be afforded an opportunity to obtain conflict-free counsel."  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]

    Represented by Lawyer, Claimant filed a motion to disqualify the Judge of Compensation Claims ("JCC") in a workers' compensation case.  The motion was not sworn to, as required by Fla.Admin.Code R. 60Q-6.126 and Fla.R.Jud.Admin. 2.330(c)(3).  The motion was denied.  Claimant then petitioned the First DCA for a writ of prohibition.

    The appellate court denied the petition and also imposed appellate attorney's fees against Claimant and his attorney under F.S. 57.105(1)(b) (2008).  After Claimant's untimely filing of a reply brief, the court issued an order to show cause why fees should not be imposed "because it appeared that the petition and briefs reflected a lack of knowledge of the rules of appellate procedure and case law, and failed to provide relevant information for this court’s review of the petition."  The show cause order identified 7 separate problematic issues.  The court was wholly unsatisfied with Claimant's response.  "In his response, [Claimant]’s attorney failed to directly address any of the issues raised.  Most significantly, there was no explanation as to why [Claimant] never requested under oath that the JCC be disqualified, nor how [Claimant] was prejudiced by his attorney not being permitted to participate in a telephone conference when it had been rescheduled so that he could participate.  There was also no explanation for [Claimant] seeking relief in the form of a blanket disqualification of the JCC in that the Florida Supreme Court has made clear that such requests will not be granted."

    The court indicated that it wished to see the fees assessed solely against Lawyer:  "Although we would prefer to exclude [Claimant] from this sanction, section 57.105 does not authorize this court to fashion such a remedy.  This cause is remanded to the JCC to determine a reasonable fee and whether [Claimant] should be accorded an opportunity to obtain conflict-free counsel."  Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010).

Trial court erred by assessing costs against State Attorney's Office as sanction for criminal case discovery violation.  [Added 2/17/10]

    The trial court entered an order taxing costs against the State Attorney's Office as a sanction for a discovery violation in a criminal case.  The State Attorney's Office petitioned the Third DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the order.  "The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases.  State v. Shelton, 584 So.2d 1118 (Fla. 5th DCA 1991); State v. Hardwood, 488 So.2d 901 (Fla. 5th DCA 1986)."  State v. Nelson, 27 So.3d 758 (Fla. 3d DCA 2010).

Florida Supreme Court vacates death sentence due to prosecutorial misconduct.  [Added 1/20/10]

    Defendant originally was convicted of murder in 1981.  An informant testified at the trial, and in a 1988 penalty phase trial.  Apparently, however, the prosecutor was aware that the informant was acting on instructions from the state, which should have rendered his testimony inadmissible.  "Yet, the prosecutor sought, successfully, to gain the admission of the informant's testimony through legal legerdemain . . ."  Defendant alleged that he learned this information about prosecutorial misconduct years after the fact, and sought postconviction relief.  (Among other things, Defendant located notes from the prosecutor's original file.)  After his second successive motion for postconviction relief was denied, he appealed to the Florida Supreme Court.

    The Court vacated Defendant's death sentences and remanded for a new penalty phase proceeding.  The Court reviewed the record and stated:  "[W]e conclude that [the prosecutor] knew at the time of the suppression hearing that the testimony of [the informant] and [the investigator] was false and his own closing argument to the court was misleading.  As a related matter, we conclude that [the prosecutor] also knew at the time of the suppression hearing that [the informant]'s testimony concerning [Defendant]'s statements was inadmissible."  The Court decided that the admission of the informant's testimony was material in the penalty phase and that the state had not met its burden of showing that the informant's testimony was harmless beyond a reasonable doubt.

    The Court included:  "This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court.  It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is.  The same principles of law apply equally to cases that have stirred passionate public outcry as to those that have not.  . . .  Lawlessness by a defendant never justifies lawless conduct at trial."  (Citations omitted.)  Johnson v. State, __ So.3d ___ (Fla., SC08-1213, 1/14/2010) (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).

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).

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).

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).

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).