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By Philip M. Burlington, Barbara Green and Christopher Carlyle

Obviously, it is unnecessary to write an article advising you of the case law stating that it is improper to mislead the jury in closing argument as to either the law or the evidence. However, there are some cases holding that some arguments that do not directly address the law are deemed to mislead the jury because they improperly shift or elevate the opponent’s burden of proof. Those cases will be discussed in this article as well as the various remedies available when an opponent makes misleading remarks about the law or the evidence.

closing argument

Comments that Mislead the Jury as to
the Opposing Party’s Burden of Proof

The simplest example of improper comments that mislead the jury as to the burden of proof occurs in criminal cases. There is a long line of cases holding that it is improper for a prosecutor to argue to the jury that if they believe the defendant lied then they should return a guilty verdict. See Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998). The rationale is that the conviction must be based on the jury’s finding that the state proved each element of the crime beyond a reasonable doubt; and a mere rejection of the defendant’s credibility is not sufficient. See also Simbert v. State, 226 So.3d 883 (Fla. 4th DCA 2017) (and cases cited therein).

In a civil context, the cases addressing arguments that improperly characterize the opponent’s burden of proof are a little more complex.

In Saunders v. Dickens, 151 So.3d 434 (Fla. 2014), a medical malpractice case, a neurologist was sued for an alleged failure to timely diagnose and treat cervical cord compression, primarily the failure to order a cervical MRI. At trial, defense counsel argued that the plaintiff had failed to prove causation relying on the deposition testimony of the subsequent treater, a surgeon, who said he would not have done anything different if the neurologist had ordered a cervical MRI. The jury returned a defense verdict, but ultimately the Supreme Court reversed based on that closing argument.

In Saunders, the Supreme Court determined that the defendant’s argument was improper because the plaintiffs were only required to establish that the neurologist’s care fell below that of a reasonably prudent physician and was causally related to the plaintiff’s injuries. Id. at 442. The court held that the defense counsel’s argument had misled the jury because it consisted of “improper burden-shifting statements.” Id. In Saunders, the harm was compounded because the surgeon’s deposition was taken while he was still a defendant in the case with a motive to deny wrongdoing and avoid liability, yet the plaintiffs were not able to inform the jury of that since the surgeon settled prior to the trial. Based on those circumstances, the Florida Supreme Court ordered a
new trial.

In Cohen v. Phillip Morris USA, Inc., 203 So.3d 942 (Fla. 4th DCA 2016), the Fourth District determined that plaintiff’s counsel had made improper comments in closing to the effect that COPD was a distinct medical condition from emphysema. The court noted that those conditions were treated as essentially synonymous on the verdict form (without objection), being designated simply as “COPD/Emphysema.” The Fourth District determined that the statements in plaintiff’s closing “constituted in attempt to elevate the defendant’s burden” on their statute of limitations defense, and therefore could have misled the jury. 203 So.3d at 948.

Saunders and Cohen may seem very fact specific, but you need to be alert for improper comments of defense counsel that mischaracterize your burden of proof. These could include closing arguments telling the jury that in order to prevail the plaintiff must prove x or y, when that is not true. Those types of argument mischaracterize or elevate your burden of proof and should not be permissible.

Remedies for Misleading Statements
Regarding the Evidence

When a party objects during closing argument and claims there has been a misstatement of the evidence, the customary remedy is for the court to instruct the jury that it is to rely on its collective memory. E.g., Randolph v. State, 556 So.2d 808, 809-10 (Fla. 5th DCA 1990). While there are usually prudential considerations that justify such a limited response by the court, the truth of the matter is that is not a ruling on the objection (which can create preservation issues), and it simply puts the issue back in the lap of the jury. That response also assumes that the jury’s collective memory is impervious to improper characterizations of the evidence in closing argument. On at least two occasions, Florida appellate courts have determined that this customary response was inadequate to cure misstatements of fact in a closing argument.

In Vargas v. Gutierrez, 176 So.3d 315 (Fla. 3d DCA 2015), review granted, No. SC15-1924, 2016 WL 9454202 (Fla. Oct. 10, 2016), the Third District reversed a judgment on numerous grounds, including plaintiff’s closing argument. The Third District concluded that plaintiff’s counsel had misrepresented an expert’s testimony in closing argument, and that the trial court’s use of the customary remedy had been inadequate. The court stated (176 So.3d at 327):

This argument by plaintiffs’ counsel materially altered the facts in evidence and materially prejudiced the jury. Rather than correcting the error, the trial court failed to sustain Dr. Vargas’s timely objection and instead merely told the jurors to rely on their own recollection of the evidence presented at trial, which had lasted several weeks.

In Vargas, the Third District did not specify what the trial court’s response to the objection should have been, but simply reversed for a new trial.

In Linic v. State, 80 So.3d 382 (Fla. 4th DCA 2012), the Fourth District determined that the prosecutor had relied on non-record facts and improper inferences in his closing argument on multiple occasions. In reversing, the court stated that “the trial court should have affirmatively rebuked the offending prosecutor … and specifically instructed the jury, contemporaneously thereto, that the comments made during closing arguments do not constitute evidence.” Id. at 393.

In one criminal case, the Third District found no harmful error when a trial court commented on the evidence after the prosecutor objected to defense counsel’s misstatement of the evidence in his rebuttal closing. Evans v. State, 627 So.2d 96 (Fla. 3d DCA 1993). While noting that judges should generally refrain from commenting on the evidence, the Third District noted that the prosecutor had no opportunity to rebut defense counsel’s misstatement and the evidence the trial court referenced was undisputed. So, while there is some authority for a trial court addressing evidence in response to a misstatement in closing argument, the circumstances justifying it must be compelling.

Another potential remedy for factual misstatements in closing arguments is to have a readback of the testimony that has been mischaracterized. Currently there is no appellate precedent directly addressing that remedy, but it is a common-sense response if obvious misstatements can be identified. In civil cases, the decision to allow the readback of testimony is within the sound discretion of the trial court. See Broward County School Board v. Ruiz, 493 So.2d 474, 479-80 (Fla. 4th DCA 1986).

Therefore, perhaps you should consider, at the time of your objection to your opponent’s misstating of the evidence, making a request that the appropriate portion of the testimony be read back to the jury. If that request is unavailing in your rebuttal argument, address misstatements and inform the jury of their right to have portions of trial testimony read back to them. A trial court is not permitted to inform jurors that they are prohibited from requesting a readback of testimony, Johnson v. State, 53 So.3d 1003 (Fla. 2010); and there is a Florida Standard Jury Instruction to be used when a jury makes such a request, see Fla.Std.Jur.Instr. 801.2. However, one limitation on the trial court’s discretion is that the readback should not be so truncated that it puts unfair emphasis on one party’s version of events. See Gormady v. State, 185 So.3d 547, 551 (Fla. 2d DCA 2016). So, consider the readback option but exercise caution as there is currently no case on point directly authorizing it.

Finally, in addressing remedies for your opponent’s misstatement of the evidence, the option of engaging in “self-help” by directly calling out the misstatements in your rebuttal is, of course, appropriate, but your comments need to be tempered. Florida appellate courts have repeatedly expressed their frustration with ad hominem attacks on opposing counsel for supposedly misleading the jury. See R.J. Reynolds Tobacco Co. v. Gafney, 188 So.3d 53, 58 (Fla. 4th DCA 2016); Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409, 410-11 (Fla. 3d DCA 1995). So, do not hesitate to take issue with misstatements of fact in your rebuttal closing, but do not accuse your opponent of intentionally misleading the jury (even if it is true), or use other intemperate language that may cause your closing argument to be improper.

Remedies for Misstatements of the Law

When an attorney misstates the law in closing argument, the most common response is for the trial judge to instruct the jury that it will provide the jury the law to rely upon in deciding the case. As with instructing the jury to rely on their collective memory, this can be an ineffective response. Many trial judges are now giving the substantive closing jury instructions prior to closing arguments, and thus there is no opportunity for the court to correct any misstatements of law in the prepared instructions. Also, while jury instructions may be clear and easily understandable to lawyers and judges, to jurors they are often perplexing and impenetrable. Therefore, it may be overly optimistic to assume that a jury will be able to correct a misstatement of law made in closing argument upon hearing or reading the final jury instructions.

In CSX Transportation, Inc. v. Whittler, 584 So.2d 579 (Fla. 4th DCA 1991), the court ruled that a misstatement of law in an expert’s testimony was sufficiently remedied by the accurate closing jury instructions. However, in Butler v. McDougal, 120 So.2d 832 (Fla. 3d DCA 1960), the court held that a misstatement of law in plaintiff’s opening argument was not cured by the accurate instructions of law given at the conclusion of the case, and therefore a new trial was mandated.

The most effective response to a misstatement of law in closing argument is a contemporary curative instruction. However, sua sponte instructions or hastily crafted statements of law can be risky. In Royster v. State, 643 So.2d 61 (Fla. 1st DCA 1994), the appellate court determined that the trial court’s “curative” instruction was “even less accurate” then defense counsel’s misstatement of the law in his closing. The court also noted that giving the instruction created the appearance that defense counsel was attempting to mislead the jury, which should also be a concern when fashioning a remedy.

In Craft v. Kramer, 571 So.2d 1337 (Fla. 4th DCA 1990), plaintiff’s counsel made comments in his closing that were arguably inconsistent with the statute which states that the existence of a medical injury in itself does not create an inference or presumption of negligence on the part of the healthcare provider. See Fla. Stat. §766.102(3)(b). Defense counsel had requested a jury instruction incorporating that statute to be included in the final instructions, but that request had been denied. When plaintiff’s counsel made the arguably conflicting statements in his closing, the defendant reiterated the request for that instruction, but the trial court denied it. The Fourth District held that the refusal to give that instruction on the second request was error which mandated a new trial. See also City Provisioners, Inc. v. Anderson, 578 So.2d 855 (Fla. 5th DCA 1991) (misstatement by plaintiff’s counsel that if jury awarded too much money the judge can reduce it, but that if the jury did not award enough money the judge cannot increase it, required new trial on issue of damages).

A failure to request a curative instruction accurately stating the law may also implicate preservation issues. In Powell v. Goldner, 483 So.2d 468 (Fla. 3d DCA 1986), plaintiff’s expert read an excerpt from the Florida Driver’s Handbook which was inconsistent with Florida law regarding the reciprocal rights of motorists and pedestrians. The defendants apparently objected to that excerpt being read, but the Third District held that the error was waived by the failure to request a jury instruction which could have cured the problem. The court stated in a footnote that the closing instructions included a generic instruction regarding the reciprocal rights of pedestrians and motorists, and noted that if the defense did not believe that instruction was sufficient to cure any misimpression on the part of the jury, “it was up to them to say so.” Id. at 469 n.2.

Anticipating misstatements of law in your opponent’s closing is, of course, prudent, but the submission of a “preemptive” jury instruction on that subject will probably be futile. In R.J. Reynolds Tobacco Co. v. O’Hara, 282 So.3d 1168 (Fla. 1st DCA 2017), plaintiff’s counsel requested a jury instruction on the rationale that it would prevent defense counsel from making an improper closing argument. The trial court gave the instruction, and that ruling was challenged on appeal. The First District noted that jury instructions are not “designed to be used as preemptive shields to stave off a party’s ability to argue its case,” Id. at 1170, but ultimately determined that giving the instruction was harmless error.

It should also be noted that the direct approach of reading legal authorities in your closing to correct your opponent’s misstatements is not available. For almost 100 years, the Florida Supreme Court has been clear that counsel are not permitted to read such materials to the jury and that it is the function of the trial court to charge the jury with the law applicable to the case. See Tindall v. State, 128 So. 494, 498 (Fla. 1930); see also Jordan v. State, 176 So.3d 920, 928 (Fla. 2015).

And we conclude with a suggestion as to the manner of presenting your objections to the trial judge when your opponent has misstated the law or the evidence. Emotional appeals and finger pointing are not as persuasive as they feel at the time. Judges know that lawyers have an inexhaustible reservoir of righteous indignation, which they resort to with alacrity and, as a result, such displays are often viewed with skepticism. Moreover, the trial judge’s concern will most likely be whether the jury was misled and, if so, what is the proper remedy. Remember that getting your opponent chastised is a fleeting pleasure and of no real benefit to your client. So, our recommendation is to focus your objection on the nature and effect of the misstatements and the appropriate means for the court to remedy the problem.

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