Calling out bad behavior...

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 25

CASES FROM THE WEEK JUNE 25, 2021

JUDGE’S CONCURRENCE CALLS OUT UNPROFESSIONAL CONDUCT (REPEATEDLY CAUSING MISTRIALS)

Cemoni v. Ratner, 46 Fla. L. Weekly D1443 (Fla. 5th DCA June 18, 2021):

The opinion actually affirmed a ruling denying the plaintiff’s request for sanctions against defense counsel for engaging in bad faith conduct during the first trial (by misstating facts and referencing inadmissible evidence) which caused a mistrial. The basis for the appeal was that because the trial judge had not presided over the first trial where the bad faith conduct had occurred, she lacked firsthand knowledge about the events. The plaintiff argued for de novo review.

The court rejected the argument, finding that because this judge had presided over the second trial, she was able to determine the propriety and potential impact of the attorney’s actions in the first trial.

Also, the judge held an evidentiary hearing. Because judges possess the inherent authority to award attorney’s fees for bad faith conduct – reserved for those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons – the court was within its discretion to find this was not one of those extreme cases that warranted the imposition of sanctions.

Perhaps the most helpful part of this case however, is the special concurrence. Therein, Judge Cohen observed that the panel had the rare situation where two cases involving the same two trial lawyers were on the same oral argument calendar, and where the two cases involved the overlapping theme of a lack of professionalism. Judge Cohen admonished that it is time for this kind of unprofessional behavior to stop. This (and the one after it) is a good case to keep if you find yourself encountering unprofessional behavior in a case, and want the trial court’s help to shut it down.

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TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF’S MOTION FOR A NEW TRIAL BASED ON MISCONDUCT OF DEFENSE COUNSEL – DEFENSE COUNSEL’S MISCONDUCT IN OTHER CASES DOES NOT HAVE PROBATIVE VALUE IN DETERMINING WHETHER THE MISCONDUCT IN ONE CASE IS SO PREJUDICIAL AS TO DEPRIVE PLAINTIFF OF A FAIR TRIAL

Bowers v. Tillman, 46 Fla. L. Weekly D1445 (Fla. 5th DCA June 18, 2021):

In this case involving the same two lawyers from the case before, defense counsel purposely included a document that had been ruled inadmissible, mentioning how the lawyer had referred the patient to the chiropractor. The document had been buried into the 140 pages of records on purpose. There was also testimony by the defense witness regarding what he believed certain medical records of the plaintiff would have shown if they were available about the treatment the plaintiff might have received prior to the car accident. That testimony was stricken.

The court affirmed the denial of the motion for new trial noting that while the misconduct of the defense counsel and the improper testimony of a defense expert may have well supported a decision to grant the new trial, the record reflected several reasons why the granting of the new trial was not warranted. The court deferred to the trial judge as being in the best position to determine the potential impact of the improper conduct and/or improper testimony, and further noted that the transcript reflected that the trial judge exercised great patience and conscientiousness.

Judge Cohen specially concurred again, criticizing the same two lawyers (from the case above) for their pattern of conduct, and rejected defense counsel’s proffered explanation for his conduct as “zealous representation” of his clients. Judge Cohen wanted to be clear that while the affirmance in these two cases could be viewed as enabling the conduct being denounced, affirmance should not be seen as approval. The judge lamented that the appellate courts are bound by the standard of review.

COURT EXPLAINS HOW PAYMENT OF FEES WORKS AMONG LAW PARTNERS WHEN ONE LEAVES THE FIRM AND THE AGREEMENT DOES NOT ADDRESS THE ISSUE

Scherer v. Austin Roe Basquill, P.A., 46 Fla. L. Weekly D1408 (Fla. 2nd DCA June 16, 2021):

Plaintiffs hired an attorney who was a partner in a law firm. The partner left the firm after expending approximately 50 hours on the clients’ case. In accordance with Rule 4-5.8 (enacted in 2005), the departing attorney and his former firm wrote a joint letter to the clients advising them of their attorney’s departure and their right to hire either the old firm, the new firm, or a different firm altogether. The plaintiff clients chose to go with the departing partner.

Almost two years later, the departing partner settled the plaintiffs’ case. His old firm asserted that it was entitled to the full contingency fee, less the portion of the fee equal to the departing partner’s equity share in the firm. Plaintiffs and the departing partner argued instead that the prior firm’s fees should be calculated based on quantum meruit determination under Rosenberg.

The Second District agreed. Notwithstanding the former firm’s argument that Rosenberg has no application where a lawyer holding an equity interest in a law firm leaves and takes the client with them, urging instead that the court apply a decision involving partnership law in Frates v. Nichols, the court found Rosenberg did apply.

That decision holds that the client should not be penalized for having to make a choice when internal law firm matters arise. The court found that Rosenberg controlled the equitable attorneys’ fee charging lien proceeding involving the old law firm and the new law firm. Thus, based upon the modified quantum meruit rule set forth in Rosenberg, the court directed the trial court to calculate the fee.

TRIAL COURTS HAVE INHERENT AUTHORITY TO REVISIT INTERLOCUTORY ORDERS AT ANY TIME BEFORE FINAL JUDGMENT

Jain v. Buchanan Ingersoll & Rooney, 46 Fla. L. Weekly D1399 (Fla. 3rd DCA June 26, 2021):

The defendant moved for reconsideration on a denial of a motion for partial summary judgment issued by the first trial judge who had been transferred to another division. The successor judge decided to grant the motion, and the plaintiff appealed arguing in part that it was error for the second judge to vacate the prior judge’s non-final order granting partial summary judgment.

Because trial courts have the inherent authority to revisit interlocutory orders at any time before final judgment, the reconsideration of the ruling was appropriate (and also substantively correct).

COURT REFUSED TO REVERSE VERDICT FOR THE PLAINTIFF BASED ON TWO FLEETING REFERENCES TO AUTOMOBILE INSURANCE

Winters v. Harper, 46 Fla. L. Weekly D1437 (Fla. 1st DCA June 16, 2021):

In this rear-end collision, where the defendants admitted liability and the case went to trial on causation and damages, the jury found for the plaintiff. The issue on appeal involved two different points during the four-day trial, where the defendants’ counsel complained about repeated questioning of witnesses by the plaintiff’s counsel regarding exchange of information at the scene. The defendants expressed a fear that this questioning would turn the jury’s attention towards insurance and away from the sole question about whether the plaintiff had suffered compensable damages because of the admitted negligence.

The court pointed out that the defendants’ lawyer was quite candid to the trial court about his aggressive strategy to focus on the conduct and communications between the plaintiff and the defendant driver following the crash. Defense counsel hoped to highlight what might be perceived as the plaintiff’s “haste in leaving the scene,” trying to call into question the truthfulness of the plaintiff’s claim that her injuries were significant.

Even though both the trial court and the plaintiff’s lawyer cautioned that the strategy risked touching on insurance, the defendants’ attorney stated that everything said and done by the parties was probative. With that as the backdrop, the court then considered the two mentions of insurance.

The first came when the plaintiff testified that she offered to give the defendant her driver information upon which the driver handed her his cell phone, and asked her to speak to his mother, causing a mention about making a report to her insurance. Defendants moved for a mistrial, or in the alternative, for a curative instruction and the judge ruled that it was better not to address the issue at that time.

The other mention came during cross of the defendant driver. There were questions at sidebar and then a slipup by defense counsel in his question, inadvertently mentioning the driver’s mother’s insurance. In this instance, the trial court gave a curative instruction.

The court concluded that the trial court did not abuse its discretion in either situation, and noted that it is not the mere mention of insurance or even the introduction of evidence of the plaintiff’s insurance that creates a problem.

Also, the defendants’ stated strategy put heavy attention on the post-crash roadside exchange between the plaintiff and the defendant, leading the court to include that the jury no doubt had insurance on its collective mind.

The rule that evidence of insurance carried by a defendant is not to be properly considered by a jury was not the rule implicated here. The court said that not every breath of insurance automatically results in a mistrial and frequently curative instructions may correct the error.

There was also the harmless error limitation, limiting the ability of a court to grant a new trial for the improper admission of evidence or any procedural error to those cases where the error complained of after examining the entire case can be said to have resulted in a miscarriage of justice pursuant to §59.041.

The court found that within the context of the trial, even if the judge could have handled the issues differently, the rulings as made did not vitiate the fairness of the trial and thus the defendants were not entitled to a new one.

TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT’S REQUEST FOR LEAVE TO AMEND PLEADINGS TO ADD SETOFF AS A DEFENSE

Wilson v. Houston, 46 Fla. L. Weekly D1447 (Fla. 5th DCA June 18, 2021):

The trial court abused its discretion in denying a motion for leave to amend when there has been no abuse of the privilege to amend, the proposed amendment would not be futile, and the adverse party would not be prejudiced by the amendment.

WHEN A TRIAL JUDGE GOES BEYOND SIMPLY FINDING A MOTION TO DISQUALIFY LEGALLY INSUFFICIENT, DOING SO IN A MANNER WHICH ADDRESSES THE MERITS OF THE MOTION, A WRIT OF PROHIBITION IS APPROPRIATE

Rivera-Torres v. Fernandez, 46 Fla. L. Weekly D1449 (Fla. 5th DCA June 18, 2021):