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 24 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.