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DeJesus v. Flick8/24/2000
da courts, like California, have also recognized that the failure to object to an attorney's improper argument in a civil case generally constitutes a waiver of the right to appeal this issue. In Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467-68 (Fla. Dist. Ct. App. 1992), the court held that although the plaintiff's attorney clearly made arguments "in violation of the well known golden rule," review of this issue was precluded, as the defense counsel did not object and the arguments made were not "sinister":
"This court has held that, absent contemporaneous objection, an improper comment made during closing remarks will not support reversal. In [one Florida appellate case] this court held that failure to object below to improper comments made in closing remarks constitutes a waiver of any right to complain on appeal. It is only in those rare circumstances where the comments are "of such sinister influence as to constitute irreparable and fundamental error" that the absence of objection will be overlooked." Id. at 467-68 (emphasis added) (citations omitted) (quoting LeRetilley v. Harris, 354 So. 2d 1213 (Fla. Dist. Ct. App. 1978)).
As in California and Florida, our review should narrow where there is no objection in order to discourage the needless waste of judicial resources required for a new trial. See generally McGuire v. State, 100 Nev. 153, 158-59, 677 P.2d 1060, 1065 (1984) (discussing the costs associated with attorney misconduct). Indeed, the failure to object frustrates the district court's ability to admonish the jury and instruct counsel so that it may forestall the accumulation of prejudice, thereby avoiding the necessity of a new trial. See Horn, 394 P.2d at 565.
I am concerned that this case will increase appellate litigation. In the future, this court will be required to review many more civil cases where improper argument is claimed but no objection was made at trial. Adopting the rule espoused in Horn, Neumann, and Budget Rent A Car would prevent this situation from occurring.
Sherry sustained permanent brain damage from the road rage conduct of DeJesus. Substantial evidence supported the admittedly high jury award. I am convinced, however, that if the jury was in any way inflamed, such passion was caused by the conduct of DeJesus and not by a few improper statements made by Sherry's attorney. I would affirm the verdict with the exception that I would reduce future medical expenses to the evidence presented. Accordingly, I dissent to the majority opinion.
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