MARK C. SHAFFER, APPELLANT,
v.
WAYNE WARD, ET AL., APPELLEES
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The trial court granted plaintiff Wayne Ward a new trial based on an alleged improper "Golden Rule" argument by defendant Mark Shaffer's counsel during closing arguments. The appellate court reversed, holding that the comments did not constitute a Golden Rule violation because they asked the jury to use common experience in deciding liability, not to consider personal financial interests in awarding damages.
The appellate court held that the comments did not constitute a Golden Rule argument because they were directed to liability and asked the jury to use common experience in deciding the case, not to consider what damages they would wish to receive personally. Even if improper, the comments did not constitute fundamental error incapable of cure by instruction.
[1] A "Golden Rule" argument urges the jury to place themselves in a party's position to allow recovery as they would want were they the party, and is impermissible when it s…
[2] A "Golden Rule" argument is improper because it encourages the jury to depart from neutrality and decide the case on the basis of personal interest and bias, rather than…
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Join FLexlaw to unlock all legal intelligence“The "Golden Rule" argument urges the jury to place themselves in a party's position to allow recovery as they would want were they the party. To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation.”
Establishes the definition and legal standard for what constitutes an impermissible Golden Rule argument.
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Join FLexlaw to unlock all legal intelligenceA trial occurred in a case involving defendant Mark Shaffer and plaintiff Wayne Ward. During closing arguments, Shaffer's counsel made comments asking…
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COBB, Judge.
The issue in this appeal is whether the trial court properly granted appellee/plain-tiff, Wayne Ward, a new trial based on what the trial court deemed an improper “Golden Rule” argument by counsel for defendant/appellant, Mark Shaffer. The portion of the argument found improper by the trial court is specifically set forth in its order, as follows:
You all drive, you’re on the road, you know how far you can see when you drive. You know the importance of brake lights and how that assists you. And you watch and see brake lights come on and you start braking. You also know if you have a sudden stop or unexpected stop in front of you, it puts you in a position where you maybe might hit the car in front of you.
I think everyone has had a close call because of what happened in front of ' them. And it wasn’t a close call because you were negligent or not paying attention, it was a close call because the car in front of you unexpectantly [sic] stopped, stopped with no warning.
No objection was made by plaintiff's counsel to these comments. The trial court determined that the defendant’s counsel’s closing argument constituted a “Golden Rule” argument, warranting a new trial on all issues for the plaintiffs. In fact, the court found that the “Golden Rule” violation was a “fundamental error notwithstanding that the plaintiff’s counsel made no objection at the time, as the same were not capable of cure by instruction and rebuke." The “Golden Rule” argument urges the jury to place themselves in a party’s position to allow recovery as they would want were they the party. To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation.1 Stewart v. Cook, 218 So. 2d 491 (Fla. 4th DCA 1969); Seaboard Coastline Railroad Co. v. Addison, 481 So. 2d 3 (Fla. 1st DCA 1985), disapproved on other grounds, 502 So. 2d 1241 (Fla.1987). Such an argument is improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias, rather than on the evidence. Schreidell v. Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986). See also Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961).
The unobjected-to comments made by defendant’s counsel in this case were not in any way directed to damages. Rather, as indicated by counsel in his statements immediately prior to the comments cited by the trial court, they were an attempt to ask the jury to use their common, everyday experience in deciding the case. As such, the comments do not constitute a “Golden Rule” argument and the trial court improperly granted a new trial on this basis. Additionally, even if we considered the comments improper, they certainly do not constitute fundamental error by being of such a character that “neither rebuke nor retraction may entirely destroy their sinister influence.” Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936). See also Stewart v. Cook, 218 So. 2d 491 (Fla. 4th DCA 1969); LeRetilley v. Harris, 354 So. 2d 1213 (Fla. 4th DCA), cert. denied, 359 So. 2d 1216 (Fla.1978).
Accordingly, the order entered below is reversed and the cause remanded for entry of judgment for the defendant in accordance with the jury verdict.
REVERSED and REMANDED.
ORFINGER and COWART, JJ., concur. . While the objection frequently occurs during the plaintiff’s case, the defendant is also prohibited from such arguments. As the court in Miku v. Olmen, 193 So. 2d 17 (Fla. 4th DCA 1966), cert. denied, 201 So. 2d 232 (Fla.1967), stated:
... We believe, however, that defendants should do unto plaintiffs as defendants would have plaintiffs do unto the defense.
193 So. 2d at 18.
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Metro. Dade Cnty. v. Arnulfo Zapata, 601 So. 2d 239 (Fla. 3d DCA 1992)…, 500 So. 2d at 233. However, to be impermissible the argument must strike at the sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation. Shaffer v. Ward, 510 So. 2d 602, 603 (Fla. 5th DCA 1987). Both plaintiffs and defendant had divided their closing statements between the issues of liability and damages. Moreover, in both plaintiffs’ and defendant’s closing, one attorney had discussed liability, while a different…
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Cummins Ala., Inc. v. Allbritten, 548 So. 2d 258 (Fla. 1st DCA 1989)…qualification, which is consistent with the reasonable person standard found in the standard jury instructions defining negligence, we are unable to conclude that the prohibition against a true golden rule argument was violated. See Shaffer v. Ward, 510 So. 2d 602 (Fla. 5th DCA 1987) (trial court improperly granted new trial on basis that statements constituted golden rule argument where statements were merely an attempt to ask the jury to use their common, everyday experience in deciding the case). Furthermo…
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Simmonds v. Lowery, 563 So. 2d 183 (Fla. 4th DCA 1990)…263 (Fla. 1st DCA 1989). “To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation.” Shaffer v. Ward, 510 So. 2d 602, 603 (Fla. 5th DCA 1987). Rather than asking the jury what they might wish to receive as compensation themselves, appellant’s argument asked the jury to do just what they must do — to determine how much to award or pay the plaintiff for her injurie…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Baggett v. Davis, 124 Fla. 701 (Fla. 1936)
- LeRETILLEY v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978)
- Seaboard Coastline R.R. Co. v. Addison, 502 So. 2d 1241 (Fla. 1987)
- Schreidell v. Rabbi Bernard P. Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986)
- Goldberg v. Weinkle, 130 So. 2d 74 (Fla. 3d DCA 1961)
- Stewart v. Inez Cook and Evert Douglas Phillips, 218 So. 2d 491 (Fla. 4th DCA 1969)
- Gaile Miku v. Olmen, 193 So. 2d 17 (Fla. 4th DCA 1966)
- Seaboard Coastline R.R. Co. v. Addison, 481 So. 2d 3 (Fla. 1st DCA 1985)
- Lerner Shops v. Hicks, 201 So. 2d 232 (Fla. 1967)
- Retzky v. J. A. Cantor Assocs., Inc., 201 So. 2d 232 (Fla. 1967)