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DeJesus v. Flick8/24/2000
den rule" arguments are forbidden because they interfere with the jury's objectivity. See Boyd v. Pernicano, 79 Nev. 356, 358, 385 P.2d 342, 343 (1963) (improper to ask the jurors to place themselves in the shoes of the victim because such argument interferes with the objectivity of the jury); see also DuBois v. Grant, 108 Nev. 478, 481, 835 P.2d 14, 16 (1992) (golden rule argument is the impermissible suggestion that the jurors trade places with the victim); McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1064 (1984).
With respect to his "power broker" message, the fact that Mainor did not expressly remind the jury that Flick is "people like you" does not save him from a violation of the golden rule. He clearly asked the jurors to "allow such recovery as they would wish if in the same position." Moreover, Mainor's "testimony" during his argument, that he personally would not want to trade ten million dollars for the use of his fingers, violated the golden rule. While making this argument, he asked the jurors, "How do you put a value on not using your fingers?" He thus invited the jury to agree that neither would they make such a trade.
Individually, Mainor's inappropriate remarks violated well-established standards of professional conduct. Taken cumulatively, Mainor's improper arguments so thoroughly permeated the proceeding that we are convinced they tainted the entire trial and resulted in a jury verdict that was the product of passion and prejudice. The $1,470,000.00 verdict plainly reflects the influence of counsel's improper arguments. There is simply no other explanation for it, particularly in light of the conflicting expert testimony regarding Flick's injuries. The award far exceeds what counsel requested, and there is no objective basis in the record to support it. It is apparent that the jury accepted Mainor's improper invitation to punish the "power brokers" and send a message to all the defense attorneys who try to shortchange people like Flick and themselves. Given Mainor's impropriety, DeJesus was deprived of a fair trial.
We therefore conclude that the district court abused its discretion in denying a new trial under NRCP 59(a)(2), misconduct by the prevailing party, and NRCP 59(a)(6), excessive damages awarded "under the influence of passion or prejudice." Accordingly, we reverse the district court's judgment and remand for a new trial on damages.
YOUNG and BECKER, JJ., concur.
PAPEZ, D.J., concurring:
The record in this case is replete with instances of serious misconduct by plaintiff's counsel during summation. Rather than "isolated instances" of misconduct as the dissent suggests, it appears to me that plaintiff's counsel, an accomplished trial attorney with over twenty years of experience, strayed across the permissible boundaries of argument with calculation and purpose. That purpose was realized in a verdict returned by the jury far in excess of what plaintiff requested. I believe the verdict was the product of counsel's calculated, repeated and seriously improper argument to the jury.
Without question, the facts of this case are upsetting, and naturally evoke sympathy for plaintiff and anger toward defendant. A young woman's health and life have been drastically altered because of the acts of the defendant. Plaintiff deserves to be and should be compensated for these damages. Counsel's zeal for his client's cause does not, however, allow for departure from the ethical and procedural rules of fair play. Because the amount of compensation owed to plaintiff is in dispute, a jury in a neutral and impartial forum, free from passion or prejudice, must decide the damage claim.
As stated in t
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