3d DCA Watch — Making a List and Checking It Twice Edition.

“Gonna find out who’s naughty and nice…..”

Anyway, in this week’s very special episode of 3d DCA Watch, the Resplendent Ones may have in fact started such a list…… Read on, childrens:

Chin v. Chiaffa:

Let’s see, what are some of the opening and closing argument no-nos we always hear about?

Golden Rule, that one I remember.

What else? Oh yeah — don’t refer to someone losing “half their manhood” if that person just has an injured right testicle which makes it very painful to canoodle:

As in SDG Dadeland Associates, Inc. v. Anthony, 979 So. 2d 997 (Fla. 3d DCA 2008), we again reverse a verdict obtained by the same plaintiff’s counsel, Ronald M. Simon, Esq., and for the same reasons, “an improper attack on [the defendant] . . . and its defense counsel.” Id. at 999.

As in SDG Dadeland, the improper litigation tactics engaged in by counsel for Caiaffa began in the opening statement and ended with rebuttal closing. They included the following:

1. Improper appeal to the passion and sympathy of the jury in opening statement.

2. Improperly convincing the trial judge to limit defense counsel’s cross-examination of Caiaffa’s expert, Dr. Wender. 

3. Improper character attack during cross-examination of main defense expert, Dr. Umlas.

4. Improper and prejudicial closing argument.

I’m not following — what’s the problem? On to the disputed testicle:

Counsel for Caiaffa failed to follow the rules pertaining to the giving of an opening statement. His assertion, moments into the opening statement, that Caiaffa was going to “be living for over 50 years with half his manhood missing,” Tr. vol. IV, p. 298, l. 17-18, is not supported by the evidence. Caiffa’s left testicle was injured in the accident. It was not destroyed and has not been surgically removed. Although Caiaffa claims that sexual activity is painful, Caiaffa’s own urologist testified he is 100% fertile. It was improper for counsel to intimate Caiaffa was missing a testicle. See Juhasz, 1 So. 2d at 479; Trawick, supra.

So the testicle was “injured,” and sexual activity is “painful,” but the dude can still have kids. That’s a win-win as far as I’m concerned!

But what about defense counsel’s references to the plaintiff’s “lawyer-driven” lawsuit?

Not so fast:

As previously indicated, there is record support for the proposition that Caiaffa’s course of treatment completely changed after he began to visit Dr. Wender. An inference can be drawn, and therefore a good faith argument made, that the referral by Mr. Simon contributed to the claims made by Caiaffa.

We do not in this instance mean to disparage counsel for the plaintiff. The legal profession has as much right as anyone else to make an appropriate referral to other professionals. However, if there is evidence that such activity is occurring solely for personal financial profit, then the jury also is entitled to have those facts brought before them for consideration.

Maybe we should go back to just reading the pleadings in openings?