television version of the lawyers’ trade. That, however, is not the function of a jury trial. [J]urors in every civil trial are told by the judge: “In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict[s] must be based on the evidence that has been received and the law on which I have instructed you.” Fla. Std. Jury Instr. (Civ.) 7.1. If we are interested in the integrity of the process by which a jury determines disputed facts, including damages in personal injury cases, we must not allow this instruction to become mere window dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too easily into a morass of prejudice, sympathy, bias, and emotion. Bocher, 874 So.2d at 704-05. In Muhammad v. Toys R Us, Inc., 668 So.2d 254 (Fla. 1985), counsel during closing argument went into an extensive story about his wife and daughter shopping at Dillard’s in addition to making other improper comments. The court reversed for a new trial, finding that the collective impact of all the comments mandated that outcome, and it specifically noted that “irrelevant familial rhetoric must not be condoned.” Id. at 258. Among other improper statements, “irrelevant familial rhetoric” was also present in the closing argument referenced in Mercury Ins. Co. v Moreta, 957 So.2d 1242 (Fla. 2d DCA 2007). At one point, counsel discussed a conversation he had with his son about the case, stating: “I have a 14-year-old son, he plays sports, he is an athlete, and if he were here, he’d say, ‘come on, dog, just give it up. Just give it up.’ And they’re not giving it up.” Id. at 1248. The Moreta court found that “it was improper for counsel to tell the jury what his 14-year-old son would have thought about the case.” Id. at 1252. The court went on to state: irrelevant stories and information about counsel’s family have no place in closing argument. … In this case, opposing counsel’s discussion of his son’s hypothetical opinion was nothing more than a transparent attempt to curry favor with the jury and to further prejudice it against Mercury. Id. at 1252. A purported discussion with one’s spouse has also been held to cross the line into improper comment. In Metropolitan Dade County v. Cifuentes, 473 So.2d 297, 298 (Fla. 3rd DCA 1985), the court found it improper for counsel to tell the jury that “I know last night I did not sleep. I know that last night was probably the first time in a long time that I told my wife that I loved her. I know that I was in fear last night, not of dying but fear of living if someone I loved died.” The case was reversed and remanded for a new trial.
Although a criminal case, Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993), is relevant to the issue. In Landry, the prosecutor referenced his military service in the Persian Gulf during closing argument. The court noted that while the comment “was not independently reversible error, we think in the context of this case it was an improper attempt to curry favor with the jury, particularly where it is entirely irrelevant to any issue being tried or argued.” Id. at 1102. The comment, when considered with other improper comments, warranted reversal.
Conclusion
Closing argument is supposed to help the jury understand the issues by “applying the evidence to the law applicable to the case.” Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla. 2000). As seen above, irrelevant stories of interactions with counsel’s family members do not further this end, and despite the broad latitude given in closing, are often improper. Attempts to curry favor with the jury are not allowed, and counsel should take care not to cross the line into “fawning” comments, while also remaining vigilant to object to such comments from opposing counsel. Currying favor with the jury can be a risky strategy in closing. By the end of the trial, the jurors have probably already sized you up, and transparent attempts to curry favor may be perceived negatively and have an adverse effect. It is natural to be ingratiating, but you must be careful about crossing the line — the cases finding such improprieties harmless were decided prior to the test for harmless error announced in Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014), and appellate courts now may be more likely to find such comments justify reversal of your favorable verdict.
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. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.
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. 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. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.
BARBARA GREEN
handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Green received her B.A. from the University of Florida in 1973 and her J.D. from the University of Miami in 1978. Active in the FJA since 1982, Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Association. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Association. Stalwarts Award for continuous contribution to the cause of justice.
www.FloridaJusticeAssociation.org | March/April 2018 | 53