Harmfulness Despite the finding of harmlessness in Nodzak, supra., and Valdes, supra., it is very unusual for courts to find allusions to other fact finders harmless in civil cases, especially in the “who got the ticket” cases. Courts frequently have found curative instructions to disregard the evidence or argument inadequate to cure the prejudice. For example, in Vantran Ind., Inc. v. Ryder Truck Rental, Inc., 890 So.2d 421 (Fla. 1st DCA 2004), the court held that a mistrial should have been granted, where the highway patrolman testified that “no tickets were written,” even though the trial court instructed the jury to disregard the testimony. 890 So.2d at 423-424. While there is no per se rule requiring a mistrial, Budget Rent a Car Sys., Inc. v. Jana, 600 So.2d 466, 468 (Fla. 1992), “when liability is at issue, curative instructions are usually insufficient to cure the error.” Diaz v. FedEx Freight East, Inc., 114 So.3d 224, 227 (Fla. 5th DCA 2012).
Counsel therefore should avoid making those kinds of argument, and should properly preserve objections and motions for mistrial when the arguments are made by the defense. PHILIP M. BURLINGTON
is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Mr. Burlington has served as Chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Mr. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.
BARBARA GREEN
handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Ms. Green received her B.A. from the Univ. of Florida in 1973 and her J.D. from the Univ. of Miami in 1978. Active in the FJA since 1982, Ms. Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Assn. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Assn. Stalwarts Award for continuous contribution to the cause of justice.
Those cases are consistent with the harmless error standard recently set by the Supreme Court in Special v. West Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2015): “Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.”
CHRISTOPHER V. CARLYLE
is Board Certified in Appellate Practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Mr. Carlyle is Chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Mr. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.
That standard will be extremely difficult to meet in the type of cases where courts have emphasized the highly prejudicial nature of evidence or argument that encourages the jury to defer to another fact finder.
PRE-SETTLEMENT CASH FOR YOUR CLIENTS WITHOUT FEES OR INTEREST Fast Funds eliminates the pressure to accept a lower settlement. Take the time you need to settle your client’s case for its maximum value. Our program is the fairest in the non-recourse funding industry. Unlike other companies, we have no fees or charges. And, we do not charge interest, no matter how long it takes for the case to resolve.
We fund all types of personal injury cases. We comply with all state laws and ethical rules. We only get paid if the case is won.
Disclaimer: An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00- 3. The Florida Bar discourages the use of non- recourse advance funding companies. An attorney may provide a client with information about companies that offer non- recourse advance funding if it is in the client’s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non- recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.
Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | November/December 2017 | 47
November_December_12_14_17.indd 47
12/15/2017 4:48:53 PM