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Florida Third DCA concludes that plaintiff attorney’s accusation in closing argument that defense counsel and expert witness were “liars’ and sexist comments about defense counsel constituted fundamental error requiring a new trial

On February 10, 2021, in Florida Peninsula Insurance Company v. Nolasco, No. 3D19-1393, the Florida Third DCA reversed a trial court ruling denying the defendant insurance company a new trial in a first party property insurance dispute. The defendant had unsuccessfully moved the trial court for a new trial based on allegedly inflammatory, prejudicial and sexist comments made by plaintiff’s counsel in closing argument against a female defense attorney. The statements included plaintiff’s counsel calling defense counsel, her client and her expert witness liars and stating that defense counsel was all about “drama”. The Third DCA noted that it has repeatedly held that arguments claiming opposing counsel “lied to the jury” or accusing counsel of “trickery” and “hiding the ball” are highly prejudicial and improper, citing Owens Corning Fiberglas Corp. v. Crane, 683 So. 2d 552, 555 (Fla. 3d DCA 1996); Sun Supermarkets, Inc. v. Fields, 568 So. 2d 480, 481 (Fla. 3d DCA 1990) (“The conduct of the plaintiff’s counsel in this case devastated any chance the defendant might have had to secure a fair trial in front of a jury who had been told not to trust the defendant’s counsel.”); Kendall Skating Ctrs., Inc. v. Martin, 448 So. 2d 1137, 1137 (Fla. 3d DCA 1984) (finding plaintiff’s assertion that defendants and their lawyers were “liars” compels reversal). The Court further noted that such comments about defense counsel are of a “nature and type that neither rebuke nor a retraction of the comments would destroy their prejudicial and sinister influence,” quoting Owens Corning Fiberglas Corp. v. Morse, 653 So. 2d 409, 410 (Fla. 3d DCA 1995).The Third DCA noted that it is onlypermissible for counsel to refer to a witness as a liar where such a characterization is supported by the record and it is understood from the context that that the charge is made with reference to testimony given in the case, citing Craig v. State, 510 So. 2d 857, 865 (Fla. 1987). Otherwise, the Court added, closing arguments that “attempt to impugn the integrity of a witness by calling him a liar,” “fall squarely within that category of fundamental error—requiring no preservation below—in which the basic right to a fair and legitimate trial has been fatally compromised,” quoting Kaas v. Atlas Chemical Co., 623 So. 2d 525, 526 (Fla. 3d DCA 1993).

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