In the case of Ashley Rierson v. David Deveau, Case Number 3D18-0246 (Fla. 3rd DCA March 20, 2019), Florida’s Third DCA held that it was reversible error for lawyers to imply during closing argument that no traffic citation had been issued.
Facts At Issue
Rierson suffered severed injuries as a pedestrian (we assume attempting to cross the road but the opinion says “traversing”) when she was struck by Deveau and pushed into another lane of travel where a second impact occurred. Regardless, Deveau was cited for a violation of 316.130(15), Fla. Stat. which creates a catch-all duty for motorists to avoid collisions with pedestrians whenever possible, even if the pedestrian is breaking the law.
Deveau eventually pleaded no contest to the citation and was adjudicated guilty.
Before trial, the trial judge entered an order prohibiting any and all references to the traffic citation and the accident report (Florida has an accident report privilege). However, during the closing argument at trial, counsel for Deveau told the jury that the police officer had not “rendered a single opinion about fault in [the] accident.” In addition, counsel argued that the police officer had not reconstructed the accident, had no opinion regarding whether Deveau used the lane appropriately, and had no opinion as to whether Deveau was negligent.
The jury found no liability on Deveau.
What Counsel Did Wrong
It is well established under Florida law that attorneys in a personal injury case are not allowed to use questions or make allusions which suggest that a driver has or had not been charged with a traffic citation.
Hence, when defense counsel made the reference about there being no opinion of fault was improper. In addition, the remark about having no opinion regarding whether Deveau was negligent is also improper because a reasonable inference from such argument is that Deveau was not cited.
As mentioned by the Third DCA, a common sense understanding tells us that the average juror will consider the decision of whether to charge or not charge a driver as very material, if not wholly dispositive, of fault.
Keep The Trials Clean
This case is a reminder of why it is important to try a clean case. Some people think it is to their benefit to hire an “aggressive” attorney. What seems to be forgotten sometimes is that trials were always meant to be about the truth.
As lawyers, we cannot change the facts of our cases. The facts of each case are what they are. As a plaintiff, you have to win cleanly because, if you don’t, you will face an appeal where your victory may be taken away.
The same holds true for an overzealous defense attorney. In this particular case, the Third DCA held that reversible error had occurred in the comments made during closing argument. Therefore, a re-trial was in order.
At the end of the day, justice was served here because implying that a citation was not issued is just as bad as implying that there was a citation.
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