Attorneys Not Allowed To Argue Mathematical Effect Of A Verdict

Personal Injury

In Harrison v. Gregory, (5D16-1037 and 5D16-2552), the Fifth DCA reversed a trial verdict where the plaintiff’s attorney had mentioned to the jury that apportioning 50% or more to the plaintiff would result in “no recovery.” Both the trial court and the Fifth DCA found this comment to be improper, however, the trial judge only issued a “curative” instruction (telling the jurors to disregard the lawyer’s argument) rather than granting a mistrial. The Fifth DCA felt that this argument in closing was serious enough to justify reversal, among other issues raised by the parties.

Why Is 50% Or More Responsibility On The Part Of A Plaintiff Important?

Section 768.36, Fla. Stat. provides an “alcohol or drug defense” when the plaintiff is 50% or more responsible for their injury and it can be proved that they were under the influence of alcohol or drugs at the time of the injury. The statutory language is below:

(2) In any civil action, a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured:

(a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff’s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and

(b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm.

Verdict Form Used At Trial

The verdict form used at the trial stated:

If you attributed any percentage of fault to [Decedent] in question __ above was some or all of that fault cause by [Decedent] being under the influence of cocaine and/or marijuana to the extent that his normal faculties were impaired?

Yes __ No __

As a result of that influence of cocaine and/or marijuana, was [Decedent] more than fifty percent (50%) at fault for his own harm?

Yes __ No __

The jury (with the use of the improper argument mentioned at the top of this post) found the driver to be 75% responsible and the plaintiff [Decedent] to be 25% responsible.

If you did not notice, there is an inherent degree of unfairness involved with the “modified comparative fault” theory (you can only recover if you’re less than 50% responsible for your own injury) for cases involving voluntary intoxication such as this one. In cases that do not involve an alcohol or drug defense, there is no need to tell the jury that a 50% verdict on liability is a 50% verdict on liability because it is implied.

However, anyone sitting on a jury isn’t going to understand why they are being asked to attribute a percentage of fault for the accident and a separate percentage of fault for how much of the original percentage of fault in the accident was caused by intoxication. This is a percentage of a percentage.

I suspect that this is the result of a poorly worded statute. Most attorneys know what a “modified comparative fault” model is and what it is trying to accomplish. In cases where modified comparative fault is the law (in a jurisdiction that generally follows a pure comparative fault theory), there is a need to explain the law to the jury, otherwise, it is confusing.

The Problem Of “Over-Lawyering”

The whole purpose of the jury system is supposed to be that citizens are less susceptible to corruption and favoritism than judges, and therefore, the parties get a fair trial. With all due respect to judges, the process of becoming a judge is politicized. Some judges are appointed by the governor (who was elected) and, despite any claims to the contrary, engage in appointing party-loyal (or agenda-loyal) candidates for judiciary positions. This is often called the “spoils” of the position.

On the other hand, running for judge (while still being one of the most accessible elected positions) is not something that just anyone can do. Florida judicial elections are supposed to be “nonpartisan,” however as we are seeing with other political issues at the national level, these elections clearly have the backing of big money politics.

So that begs us to ask the question, why can’t a jury handle being told by a lawyer in the case that finding the plaintiff 50% or more responsible because of intoxication means that the plaintiff gets nothing? If juries are supposed to be trusted more than judges to reach the right outcomes, then why do the judges know how it works but not the individual jurors?

This is a shining example of what I call “over-lawyering” in the legal profession, meaning that lawyers and judges know better than juries. If you step back and look at the issues for what they are, telling a jury what they are actually doing with a verdict is not unfair. Instead, what is unfair is letting the jurors wonder why they are there and refusing to answer questions as to what happens depending on their answer to a certain question.

I have always found jurors to be conscientious, caring, and above all else fair. They are not six uninformed “idiots” who don’t know what they’re doing. So what’s so bad about jurors understanding what their verdict means?

This should be something to think about as well as the list of other things that jurors are not told.  Instead of lawyers asking themselves what they will not allow a jury to see, lawyers and judges should be asking the question of what the jurors need to know to decide a case fairly.

Get Help With Your Case

If you have a personal injury case, you are in for the fight of your life against the insurance companies and the legal system. You want to make the best decisions that you possibly can as you navigate the complex legal environment. For help with your case, contact a Lakeland, Florida personal injury to discuss what we can do to help. A consultation is free.


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November 07, 2017