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New Trial Granted for Defense Counsel Improper Conduct

April 30, 2012
Bonnie Navin

In an interesting turn of events, the Second District Court of Appeal turned the tables on an earlier opinion
after consideration of the remand by the Florida Supreme Court on the issue of
whether improper conduct on the part of defense counsel during trial, some of
which on the record and some not, should be enough to grant a new trial.

The jury returned a verdict in favor of the Defendant which prompted the Plaintiff-Estate to file a motion for
new trial based on improper conduct of the defense counsel. The Estate erred in
not moving for the mistrial during the course of the trial.

The court noted “the trial transcript reflects contentious and raucous 5-day jury trial, fraught with
objections and bench conferences.” The actions of Defense counsel caused
Plaintiff to make numerous objections which lead to the Estate risking the
alienation of the jury or causing the jury to infer that one side of the case
is trying to hide or disguise matters that would be useful to the jury.

The trial judge noted during the hearing on the motion for new trial that she was gravely concerned over the actions of Defense
counsel which lead to a swift motion for recusal of the trial judge by the
Defense who actually witnessed the behavior. The trial judge was then recused
leaving a subsequent judge to try and evaluate what occurred during the trial.

The court determined that the counsel’s conduct can be said to have “gravely impaired a fair consideration
and determination of the case by the jury.” They further determined the conduct
was incurable. The court noted “we cannot condone the practice of counsel engaging
in overly zealous representation amounting to misconduct and then reaping the
benefit of recusing the judge who was in the best position possible to assess
the effect of that misconduct on the fairness of the trial.”

The resulting moral to the story….seek a mistrial during the course of the trial and be sure that all conduct is on
the record!

Sullivan v. Mark David Kanarek, MD, et al, 37 Fla. L. Weekly D439 (2d DCA, Feb. 17, 2012)