PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 | Page 24

PROFESSIONALISM CORNER
How to Lose Your Case (or Worse…)
in Closing Argument
JAMES W. SHERMAN
Lawyers should exercise professionalism
whenever they are inside the courtroom and
throughout trial. Yet some attorneys behave
as if the Rules of Professional Conduct only
apply up until closing argument. Those who
think summation is a free-for-all are sorely
mistaken. Leeway given during closing
argument is not a license to throw propriety
out the door.
Accusing opposing experts of impropriety
where not supported by evidence: Opposing
experts are easy targets. Their financial biases
are fair ground for impeachment, but unless
evidence supports it, it is improper to accuse
them of fraud. These types of arguments and
those mentioned above typically go hand in
hand. iii Perhaps the most notorious strand
involves casting the opposing expert as a
“hired gun.” iv Courts loathe this variety of
In a recent opinion, the Fourth District took a argument because they “serve to denigrate
hardline approach against improper closings: the judicial system.” v
In Tullo, we sent a gentle message to lawyers
pertaining to how future cases should be
handled, and cautioned counsel to "be
vigilant in crafting closing arguments that
fall within the confines of permissibility.”
Unfortunately, we have seen many recent
cases where this warning was either
misunderstood or simply ignored. In this
opinion, we hope to make that warning
clearer. Attorneys who engage in such
tactics in the future do so at their own peril,
and the peril of their clients, by risking the
reversal of their cases on appeal.
Violating orders on motions in limine: One
of the fastest ways to incur the wrath of
the court is to defy an unambiguous order.
Nevertheless, it appears that sometimes
the temptation to bring up evidence the
court excluded is just too great. To make
matters worse, reference to facts that will
not be supported by admissible evidence
violates Rule 4-3.4(e). Yet again, however,
there are plenty of examples. Perhaps, the
most common is reference to a traffic report
or citation that has been excluded. That sort
of conduct is risky, as courts have inherent
authority to enforce their own orders, which
R.J. Reynolds Tobacco Co. v. Calloway, 201 So. also includes sanctioning parties who violate
3d 753, 765 (Fla. 4th DCA 2016) (en banc), rev. them.
denied , No. SC16-1937 (Fla. March 16, 2015),
cert. denied , 138 S. Ct. 163 (2017) (internal Referencing evidence the party successfully
citations omitted). Failure to heed the court’s excluded: Having your cake and eating it
warning can land attorneys in hot water with too is as unattainable in litigation as it is in
the court, their client, or the Bar. Below are daily life. But unattainability does not stop
a few particularly grievous arguments that some from trying. In that vein, attorneys
attorneys should avoid.
must avoid commenting in closing argument
on the absence of certain evidence that he
Accusing opposing counsel of impropriety: or she successfully excluded earlier in trial.
Rule 4-3.4(e) prohibits attorneys from Whether it is expert testimony on the lack
“allud[ing] to any matter that the lawyer does of causation, vi the standard of care, vii the
not reasonably believe is relevant or that will plaintiff’s susceptibility to future injury, viii or
not be supported by admissible evidence.” any critical piece of evidence, such argument
R. Regulating Fla. Bar 4-3.4(e) . Despite the is “prejudicial because it improperly implie[s]
obvious impropriety of falsely accusing that the failure to offer the testimony was
opposing counsel of dishonesty or fraud, because the defendant had no favorable
Southern Reporter is rife with cases reversing testimony to present to the fact finder.” Id. In
verdicts on such grounds. For instance, other words, the rules of evidence should not
accusing an attorney of presenting “a work of be used as a double-edged sword.
fiction” to the jury is improper, i as is arguing
that he or she would do “anything to advance Conclusion
the cause.” ii Such arguments stray far from
the oath of admission to The Florida Bar in To borrow a sports phrase, professionalism
which attorneys swear “fairness, integrity, must be played to the whistle. Whatever
and civility” to “opposing parties and their benefit might be gained from stepping over
counsel.”
the line is easily erased when a new trial is
PBCBA BAR BULLETIN
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granted. And such action can just as easily
become a detriment should the court or the
bar impose sanctions or reprimand.
i See Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993).
ii Schubert v. Allstate Ins. Co. , 603 So. 2d 554 (Fla. 5th DCA
1992).
iii See Venning, 616 So. 2d at 605 (“We believe the improper
comments made by defense counsel essentially accuse
the medical expert of perjury and accuse opposing counsel
of unethically committing a fraud upon the court.”); Ford
Motor Co.v. Stimpson , 115 So. 3d 401 (Fla. 5th DCA 2013), rev.
denied, 133 So. 3d 528 (Fla. 2014).
iv See King v. Byrd, 716 So. 2d 831 (Fla. 4th DCA 1998), rev.
denied , 779 So. 2d 271 (Fla. 2000).
v Budget Rent a Car Systems, Inc. v. Jana, 600 So. 2d 466
(Fla. 4th DCA 1993), rev. denied , 606 So. 2d 1165 ( Fla. 1992).
vi See State Farm Mut. Auto. Ins. Co. v. Thorne , 110 So. 3d 66
(Fla. 2d DCA 2013).
vii See Carnival Corp. v. Pajares , 972 So. 2d 973, 975-76 (Fla.
3d DCA 2007), rev. dismissed , 985 So. 2d 1091 (Fla. 2008).
viii See JVA Enters., I, LLC v. Prentice, 48 So. 3d 109, 115 (Fla.
4th DCA 2010).
James W. Sherman is a senior attorney with
the South Florida Water Management District.
He is board certified in Appellate Practice and
has argued cases in all five district courts
of appeal as well as the Supreme Court of
Florida.