Archive for the ‘Trial’ Category

Opening Statement Remark About Defendant’s Income = New Trial

Monday, March 15th, 2010

The Fifth Circuit held last week that the statement, “in a good week [defendant] may make $1,500,” made by defense counsel in opening statement warranted a new trial.   The court concluded that the jury’s verdict reflected that it was controlled by sympathy.  The presence of a jury member crying during openings also was twice pointed out.

The case is Robin Samuels v. William L. Torres (Sawaya, Orfinger, and Jacobus).  In this personal injury case, liability was admitted and the dispute was over the amount of damages.  Through medical and economist experts, the plaintiff sought over $600,000.  The only medical expert referenced in the opinion reportedly stated that the plaintiff “definitely needed [future] cervical spine surgery.”

In closing, defense counsel argued that the jury should neither award significant pain and suffering nor award money for future surgery.   In the end, the jury awarded past medicals, $5,000 pain and suffering, and $34,000 for future neck follow-up.  The opinion states, “there is absolutely no evidentiary support for such an award.”

Interjection of a party’s wealth or poverty is considered both irrelevant and highly prejudicial.  Here, the court noted that counsel revealed his client’s meager income, a jury member began to cry, and the jury returned a verdict which was not consistent with the evidence (thus suggesting they were swayed by sympathy).

What is unclear is whether counsel’s entire statement in opening was improper.  In the opinion, the “in a good week he makes $1,500″ is italicized.  So we know that such a blunt statement is improper.  However, a prior portion of counsel’s comment involves the lawyer “introducing” his client to the jury by explaining he is a truck driver “who does work for whoever he can get work from” and that he is responsible for costs like gas and maintenance.  The opinion does not address whether an introduction — which seems appropriate and commonplace in opening statements — may actually reveal signs of someone’s wealth (or lack thereof) without being prejudicial.

Taxable Costs: From Ridiculous to Court Reporter Fees for *ALL* Depositions

Monday, February 8th, 2010

After a verdict, the battle over taxable costs can be a vicious and cruel additional hit.  The case of The Landmark Winter Park, LLC v. Thomas and Gail Colman reflects the potential brutal nature of post verdict claims for costs.

By way of background, the Florida Supreme Court’s current statement on taxable costs come from In Re Amendments to Uniform Guidelines for Taxation of Costs.

In Landmark of Winter Park, the court denied the following costs as “overhead”: postage, envelopes, copying, online research, fax charges, overtime for paralegals, after-hours heat and AC, mileage, meals, and long distance charges.

Permitted were costs such as court reporter fee for all depositions (not just those used at trial) and charges for photocopies of trial exhibits.

Florida Small Claims Court — A Walkthrough Guide

Wednesday, October 28th, 2009

In a down economy, many people and businesses are looking to collect on smaller debts… often taking action without counsel.  As we discuss in our Terms of Service, the following is not legal advice, but simply information, and it is no substitute for a good lawyer in your area.

A discussion of the in’s and out’s of this area of practice springs from an October 28, 2009 presentation at the Palm Beach County Main Library in a Small Claims Court Clinic.  The Sun-Sentinel recently ran this story, “Need a Cheap Attorney?  Hire Yourself.” The Powerpoint presentation, created by the Palm Beach County Bar Association Small Claims Court Committee (Lloyd Comiter, Chairperson) is here.

Small Claims Issues:

1.  What Rules Apply and Where Can I Find Them? You will need the Florida Small Claims Rules.  You also should review Florida Rules of Civil Procedure 1.090, 1.190, 1.260, 1.410, and 1.560.

2.  Where Can I File Suit? Roughly speaking, look to where the contract (or note) was signed; where the defendant or person who signed the contract/note resides; where event occurred; where defendant(s) live; where subject property is located; where a payment is due to be made; or a venue stated in contract.

3.  What Do I File? The Plaintiff (person suing) files a Statement of Claim (the small claims rules provides 6 templates which can be used or tailored).  The Defendant (person being sued) does not need to file anything.

4.  What Deadlines are Important? All deadlines are important but be mindful of: (1) pre-trial conference shall be within 35 days of filing Statement, (2) counterclaims must be filed 5 days before conference, (3)  you can request a jury trial in writing at or before the conference, and (4)  trial will be within 60 days of the conference.

5.  Tricks to Watch For: (1) pro se party will not have to respond to written requests (discovery) unless they ask first — so if the other side has a lawyer, do not open that trap, (2) summary judgment does not exist under the Fla.R.Civ.P. but does under Rule 7.135, (3) likewise, while the Fla.R.Civ.P. do not apply, in theory you could still serve a Proposal for Settlement under F.S. 768.79, (4) rules of evidence are liberal but still there Rule 7.140(f), and (5) court can advise you on order of evidence but not rules of law… in short, you cannot expect too much guidance (just patience) from the bench.  Rule 7.140(e).

6.  Other sources: consider this online book, How to Win in Small Claims Court in Florida.  It is 7+ years old so be warned that rules and procedures have changed.

In Closing Argument, Comment on Lack of Evidence, Not Witnesses

Monday, October 12th, 2009

It is so tempting in closing argument to trash your opponent for not proving their points.  But tread lightly, as case law holds that you cannot state or imply fault on a party for failing to call witnesses equally available to both sides.  BUT, you can fault them for not introducing evidence.  So make your point that way and avoid a mistrial.

In Community Asphalt Corp. and Alfredo Martinez v. Joaquin Bassols, the parties argued over whether the injured plaintiff had missed out on a business deal with the energy drink manufacturer, Red Bull.  The plaintiff himself admitted he was unaware he might have even had such a deal which his lawyer had introduced through his sister.  In closing, opposing counsel said, “You should expect more evidence than his sister  coming into court.  You should expect something from Red Bull.”

The Third District (Ramirez, Cope and Salter) concluded that counsel’s remarks permissibly addressed evidence as lacking, not witnesses.

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