New Trial: Misconduct of Counsel, Fair Comment, Bilateral Conduct

Chin v. Caiaffa, ___ So. 3d  ___, 35 Fla. L. Weekly D1742 (Fla. 3d DCA 8/4/10)

The appellate court reversed a judgment for the plaintiff in a personal injury case based upon the misconduct of his lawyer throughout the trial.  Opening Statement: (1) implying that the plaintiff lost a testicle, which constituted a misrepresentation (2) stating that the plaintiff was in debt with over $80,000 in medical expenses, which constituted a comment on the financial standing of a party, (3) stating that by their negligence, the defense wrote a blank check for the jury to fill out, which constituted an appeal to sympathy and a form of golden rule argument; Closing Argument: (4) stating although the defendant admitted liability, he was not contrite and never apologized for the accident, (5) stating although the jury could not feel the plaintiff’s pain, the jury should try to imagine it, (6) stating “[s]cars are only tiny on someone else’s face,” which constituted a Golden Rule argument; Rebuttal Argument: (7) characterizing the defense as frivolous and designed to add insult to injury, (8) accusing defense counsel of trying to fool the jury, (9) arguing that although everyone makes mistakes, you make a bigger one when you don’t admit it, when you try to avoid responsibility, when you call witnesses who don’t tell the truth, when you do anything to win, and when you do anything to save the day, (10) asking the jury to compare the plaintiff’s life to a Picasso painting worth $10 million and suggesting if the case involved the painting, the jury would write a $10 million check in five minutes.  In addition, reversible error was committed by (1) excluding evidence that the plaintiff was referred to a second opinion doctor by his lawyer, which constituted evidence of bias, (2) precluding the defense doctor from (a) testifying about the necessity of the surgery performed by the second opinion doctor after the defense doctor submitted his last report, and (b) using interoperative photographs used by the second opinion doctor during his testimony, in view of the fact that plaintiff’s counsel maintained that he did not need to depose the defense doctor because he already knew what he was going to say, and (3) permitting plaintiff’s counsel to read “to the jury the substance of the facts and circumstances of other cases in which [the defense doctor] had testified.”  The plaintiff was not entitled to affirmance because defense counsel told the jury that this was a “lawyer-driven lawsuit.”  This was fair comment because the plaintiff’s lawyer referred the plaintiff to the second opinion doctor when his first doctor expressed the opinion that the plaintiff was doing well.  Furthermore, bilateral misconduct is not a defense.