 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
DeJesus v. Flick8/24/2000
ction, creating a freewheeling atmosphere that the district court permitted.
In civil cases, we place great reliance on the advocacy system and require the attorneys for the parties to present their case competently and to timely state all objections. If evidence or argument is not objected to, it cannot be later claimed as grounds for reversal unless it can be determined that plain error occurred that prejudiced and inflamed the jury.
Other courts have faced factual situations very similar to the one presented here, and these courts have developed a rule that would better compliment our holding in Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995). See Horn v. Atchison, Topeka and Santa Fe Ry. Co., 394 P.2d 561, 565 (Cal. 1964); Neumann v. Bishop, 130 Cal. Rptr. 786, 811-12 (Ct. App. 1976); Budget Rent A Car Sys., Inc. v. Jana, 600 So. 2d 466, 467-68 (Fla. Dist. Ct. App. 1992).
In Horn, the California Supreme Court concluded that the remarks of plaintiff's counsel had created an atmosphere of bias and prejudice that was manifestly calculated to deprive the defendant of a new trial. 394 P.2d at 565. Despite this conclusion, the court affirmed the jury's verdict for plaintiff and held that the defendant had waived his right to complain by failing to object:
"Generally, a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeated improprieties, thus avoiding the necessity of a retrial. "It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have." In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice." Horn, 394 P.2d at 565-66 (emphasis added) (citations omitted) (quoting Tingley v. Times-Mirror Co., 89 P. 1097, 1106 (Cal. 1907)).
Numerous other California courts have followed the holding in Horn and affirmed verdicts where there was improper trial conduct to which the opposing attorney failed to object. For example, in Sabella v. Southern Pacific Co., 449 P.2d 750, 754 (Cal. 1969), the court affirmed a verdict for plaintiff despite the fact that plaintiff's counsel had accused the defense witnesses of committing perjury, appealed to the jurors' sympathies through repeated references to both the defendant's wealth and plaintiff's lack of resources, and made an improper golden rule argument.
Similarly, in Neumann, 130 Cal. Rptr. at 811-12, the court concluded that plaintiff's counsel had made numerous improper arguments, including several improper golden rule arguments, an argument that pain and suffering should be four times the special damages, and an erroneous argument that the defendant had a right to indemnity. Despite this impropriety, the court affirmed the jury verdict and held that the defense counsel had waived its claim of error by failing to object or by making an inadequate objection. See Neumann, 130 Cal. Rptr. at 812. The court further concluded that the jury's award was not so "grossly excessive as to shock the moral sense so that the trial court as well as the jury can be deemed to have succumbed to passion or prejudice." Id. at 814.
The Flori
Page 1 2 3 4 5 6 7 8 9 10 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|