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New Trial Granted Because of Trial Counsel’s Bad Behavior

Posted: February 4, 2012 Filed under: Case Law, Commentary

Folks who think the most aggressive lawyers are the best or most effective lawyers should read the Fifth District Court of Appeal’s February 3, 2012, opinion in Irizarry v. Moore, No. 5D09-3207 (Fla. 5th DCA Feb. 3, 2012). The court began:

This is a troubling case. In the final analysis we conclude that trial counsel for the appellees, [name omitted], stepped over the behavioral bounds so frequently during the three-day trial of this case that a reversal is required. That is to say that while each individual defalcation of [name omitted] might not justify reversal, their totality surpasses the critical mass that compels us to order a new trial.

Then, after describing some of the behavior and quoting from the trial transcripts, the Fifth District announced its conclusion:

As noted, this list is not intended to be exhaustive. Rather, it is intended to provide a glimpse into the conduct of the trial by Mr. [name omitted]. Frankly, at the end of the day, because of Mr. [name omitted] egregious behavior, we have no confidence that the parties received a fair trial of the issues. [Citations omitted.] Although the appellant moved for a new trial based on the pervasive effect of
opposing counsel’s conduct, the motion was denied by the trial court. We conclude that the trial judge abused her discretion in doing so.

In concluding, the court cited other cases reflecting trial counsel’s inappropriate conduct and hinted in a footnote that sanctions would have been appropriate had Mr. Irizarry’s attorney requested them.

Admitted: Florida, Kansas, New Mexico (inactive)