Loose lips lose trials–after the fact

Interestingly enough, there were two cases whose appellate opinions were filed in the last week where an attorney lost his case, and thus his client’s case, due to the lawyer’s comments causing an appellate court to reverse a decision in the trial court. One was in South Carolina and one was in Florida.

South Carolina’s case was a criminal case, indeed a death penalty case of Vasquez v. State of SC: http://www.sccourts.org/opinions/HTMLFiles/SC/26852.htm (Opinion filed on August 9, 2010.) Certainly the Solicitor, like all attorneys, knows that there is a lot of appellate scrutiny on death penalty cases. In the Vasquez case, the Defendant, who was a Muslim, was convicted after being fired from Burger King, returning at closing time, locking two people in the restaurant’s walk-in freezer (from which they later escaped) and killing two other people. Still, the prosecutor in this Horry County, SC case went too far in the death penalty phase by referring to the Muslim Defendant as a “domestic terrorist” and drew a correlation between his indicted conduct and the events of September 11, 2001.” The case was reversed and remanded with the reminder (shall we call it): “While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor’s closing argument must, of course, be based on this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice. State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007) (quoting State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981)).”

So, in case there needs to be a reminder, let me put it this way: Bias, passion and prejudice are not to be the basis of any verdict with this criminal case also being a reminder to all attorneys, whether involved in criminal or civil cases.

In the Florida case filed on August 4, 2010, the Defendant Daniel Gilbert Andrew Chin, appealed the denial of his motion for a new trial from a jury verdict in the sum of $1,360,740 [yep, almost $1.4 MILLION], awarded to the Plaintiff motorcyclist William Roger Caiaffa, for injuries to his right knee, right ankle, right testicle, and right wrist, arising out of a collision between Chin’s automobile and Caiaffa’s motorcycle. The Defendant Chin admitted causing the accident, so the decision was how much, if anything, should be awarded to the Plaintiff, whose attorney had previously had a case reversed in 2008 for the same reasons, “an improper attack on [the defendant] . . . and its defense counsel.” So, it is not like he was a stranger to letting his lips flap a bit too much. I will defer to the case where you can read the egregiousness of his opening statement, closing argument and reply argument. Here is where you can find the decision: http://www.dailybusinessreview.com/images/news_photos/64370/3rd-dca.pdf

Attacks upon opposing counsel apparently are not taken lightly in Florida. For example, in an earlier 2007 decision (unrelated to current counsel in the case I am discussing with you), argument that defense counsel was “‘pulling a fast one,’ ‘hiding something,’ and ‘trying to pull something,’ was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury,” requiring a new trial. Sanchez v. Nerys, 954 So. 2d 630, 632 (Fla. 3d DCA 2007).

Sounds like a good place to practice law. Too often I hear some argument that defense counsel (me in this example, although I handle Plaintiff’s cases also) is allowed broad use of a subpoena and, if there was something to refute the Plaintiff’s medical claims, I would have produced it. Of course, the problem is that closing argument is an argument on the evidence and reasonable inferences from the evidence admitted at trial, and not an attorney attempting to testify (as I characterize it here) in closing argument.

A 50 year old Florida case also was quoted in the opinion and is worthy of your time and effort to read it thoroughly:

It may well be that any unscrupulous attorney (if there be such) or one
who must choose between suffering the pangs of conscience because
of an infraction of the canons of professional ethics, and suffering the
pangs of hunger, the realization of his family being in want, and the
hounding of creditors may yield to the temptation to overstep the
bounds of propriety where one who by fortuitous circumstances is
faced with no such problem may experience no such temptation.

Juhasz v. Barton, 1 So. 2d 476, 478 (Fla. 1941). And, as the modern day Florida court noted “there is no indication in the many Florida Supreme Court opinions issued in civil cases since that time that its concern is any less today.”

So, as we grow and prosper in the law in South Carolina, we attorneys need to remember a lot of things, not the least of which is set forth here. And, yes, the civility oath kicked in during the last few years. The Utah Bar Association thought to mention our civility oath in a discussion on civility: http://webster.utahbar.org/barjournal/2009/05/enforcing_civility_in_an_uncivilized_world.html

Head to head, let us go to trial. Stoop not into the dirt and mud, nor sling such at others. Let justice rein, not attorneys’ personalities.

NOTE: Here I am on our newest website: http://lawfirm-charleston-sc.com/attorney-profiles/#att_two


About MaxLaw843

Max is an attorney and a member of Grimball & Cabaniss, LLC where he has practiced litigation since 1987, concentrating in construction, personal injury, and business litigation. He also has handled quite a number of appellate cases. In the community, he is past president of the Scottish Society of Charleston, Inc. and is the Chair of Church Council of Bethel United Methodist Church in downtown Charleston.
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