MAYNARD NELSON AND MYRTLE NELSON, APPELLANTS,
v.
RELIANCE INSURANCE COMPANY ET AL., APPELLEES
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The Fourth District Court of Appeal affirmed a trial judgment despite acknowledging improper conduct by defense counsel during closing argument, holding that absent proper objections from opposing counsel, such comments do not constitute reversible error.
Improper remarks by an attorney, even when numerous and improper, do not constitute reversible error absent objections by opposing counsel. Appellate courts cannot be expected to correct unobjected-to trial conduct, and silence by experienced counsel is presumed to be intentional trial tactics rather than forfeited rights.
[1] Reversible error cannot be predicated on improper attorney comment or argument absent an objection, unless the remarks are of such sinister influence that they constitute…
[2] An appellate court will not correct mistakes in trial tactics or strategy, such as the failure to object to opposing counsel's remarks, on appeal when the failure to obje…
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Join FLexlaw to unlock all legal intelligence“Few, if any, objections were lodged about the improper remarks made by defense counsel during closing argument in this case although such remarks were numerous. It would be their cumulative effect that would justify reversal.”
Establishes that absence of objections prevents cumulative improper remarks from warranting reversal
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Join FLexlaw to unlock all legal intelligenceThe appellants Nelson brought an action against Reliance Insurance Company. During trial, defense counsel made numerous improper comments and argument…
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LETTS, Judge.
This cause is affirmed.
Notwithstanding, we are perturbed at the conduct of defense counsel during this trial and had appropriate objections been lodged, particularly during closing argument, we would have reversed because there exist innumerable examples of improper comment and argument. However, we perceive very few instances where remarks by an attorney are of such sinister influence as to constitute reversible error, absent objection. LeRetilley v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978). Few, if any, objections were lodged about the improper remarks made by defense counsel during closing argument in this case although such remarks were numerous. It would be their cumulative effect that would justify reversal. We noted in the LeRetil-ley case, supra that objections to a particular course of conduct once made and overruled need not be repeated. However, the remarks here, while all improper, were by no means identical and there was no motion for a mistrial.
We are distressed at an increasing tendency, by the trial bar, to permit the noble art of trial practice to degenerate into a free-for-all. See Seguin v. Hauser Motor Company, 350 So. 2d 1089 (Fla. 4th DCA 1977), and Levin v. Hanks, 356 So. 2d 21 (Fla. 4th DCA 1978). However, while all judges are required by judicial dictates to exercise control over a trial, absent proper objections, neither trial, nor appellate judges, can be expected to take on the role of school teachers, continually correcting argument or comment unobjected to by opposing counsel.
We view, with some skepticism, appellant’s agonized cries that comment by opposing counsel below deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such the failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfire, save in the most rare of circumstances, Haist v. Scarp, 351 So. 2d 1120 (Fla. 4th DCA 1977). But see Akin v. State, 86 Fla. 564, 98 So. 609, 612 (1923).
AFFIRMED.
DOWNEY, C. J., and CROSS, J., concur.
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Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)…bility that counsel may, as a tactical decision, refrain from objecting to opposing counsel’s improper argument based on the belief that such improper argument actually hurts opposing counsel’s rapport with the jury. Cf. Nelson v. Reliance Ins. Co., 368 So. 2d 361, 362 (Fla. 4th DCA 1978). Also, requiring a contemporaneous objection provides the trial judge, who is in the best position to evaluate the propriety and possible impact of allegedly improper closing argument, with the optimal opportunity to stop su…1 / 2
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Borden, Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985)…ere to the Marquis of Queens-berry rules, and (b) that reversal is not justified because, as an aspect of the mutual combat engaged in below, the defendant did not timely object to the now alleged improprieties. See Nelson v. Reliance Insurance Co., 368 So. 2d 361 (Fla. 4th DCA 1978). Because we cannot agree that a judgment rendered under these circumstances may be permitted to stand, we do not accept this position. Approaching the issue on the basis of established principles of review, we conclude that the…
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Hagan v. SUN Bank OF Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996)…ts because both the trial judge and the appellate court find it difficult, if not impossible, to determine whether the failure to move for a mistrial in a timely manner was a tactical decision or an oversight. See, e.g., Nelson v. Reliance Ins. Co., 368 So. 2d 361, 362 (Fla. 4th DCA 1978) (trial tactics in closing argument cannot be corrected simply because they backfire). If the issue has been properly preserved, the legal standard for trial courts to use in deciding motions for new trial based upon counsel…
Previewing 3 of 34 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Akin v. State, 86 Fla. 564 (Fla. 1923)
- LeRETILLEY v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978)
- Seguin v. Hauser Motor Co., 350 So. 2d 1089 (Fla. 4th DCA 1977)
- Leo & Sylvia Levin & Fed. Ins. Co. v. Hanks, 356 So. 2d 21 (Fla. 4th DCA 1978)
- Melval C. Haist v. Scarp, 351 So. 2d 1120 (Fla. 4th DCA 1977)
- Ab Rosen v. Selma Bauman, 351 So. 2d 1120 (Fla. 4th DCA 1977)