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An Appellate Lawyer’s Top 10 Land Mines in Civil Litigation

Appellate Practice

Without a doubt, litigation is hard work. You have battled long and hard for your final verdict. How can you help ensure that your hard-won verdict remains intact? Or, if something went wrong in the trial court, how can you help ensure that your argument will, at the very least, be considered by the appellate court?

Very simply: As a great trial lawyer, you have to do the right thing in the trial court. You have to know the potential land mines that exist, and you have to know what to do to avoid these land mines.

The top 10 land mines1 in civil litigation are as follows:

Land Mine #1: Motion for Rehearing/Reconsideration and Nonfinal Orders
A motion for rehearing or reconsideration of a nonfinal order rendered during the trial proceedings does not toll the time for filing a notice of appeal. Motions for rehearing, which toll the time for taking an appeal, must be “authorized,” i.e. , directed toward orders and judgments that are final in nature.2 Motions for rehearing are generally directed toward final orders, while motions for reconsideration are typically directed toward nonfinal orders. Litigants will often use the terms interchangeably. Regardless of the title used, if the motion is directed toward a nonfinal order, there is no tolling.

Land Mine #2: Jury Selection
In order to preserve your right to challenge errors in the manner used to select the jury, you must object at trial to the jury as finally composed. Otherwise, you waive your right to complain on appeal.3

To preserve your right to challenge error in refusing to excuse a potential juror for cause, you must exhaust all peremptory challenges and make a request for additional peremptory challenges. You must show that you were forced to accept the objectionable juror, and this juror actually sat on the jury. Additionally, you must identify to the trial court the particular objectionable juror whom you would have struck had peremptory challenges not been exhausted.4 After objecting to the denial of a peremptory challenge by the trial court, or the use of a peremptory challenge by opposing counsel, you must renew your objection before the jury is sworn to preserve the jury selection issue for appellate review.5

Land Mine #3: Admission and Exclusion of Evidence
If the trial judge denied your pretrial motion in limine, and the evidence that was the subject of your motion in limine is offered during trial, you still need to object. A contemporaneous objection must be made when the evidence is offered to preserve the issue for review.6

If the trial judge also has excluded evidence you believe is significant to your case, and you have only made a general reference to the evidence during argument before the trial judge, the appellate court will not reverse the judge or order a new trial on the basis of this excluded evidence. The appellate court will not even consider your argument unless you make an “offer of proof.” Did you make known to the trial court the substance of the evidence by an offer of proof? Or is the evidence obvious from the context of the record? Documentary evidence must also be proffered.7 The trial court’s refusal to permit the proffer is generally reversible error.8

Land Mine #4: Objections
As a general rule, objections must be specific, and they must be timely. Objections must be contemporaneous, or the alleged error will be waived.9 The objection also must state the specific legal grounds, and only those grounds will be considered by the appellate court.10 This principle is based on fairness to the trial judge, who should be apprised of the objection with sufficient specificity to rule on any putative error.11 Further, a party must obtain a ruling from the trial court on the objection in order to preserve the error for appellate review.12

Land Mine #5: Directed Verdict
To challenge the sufficiency of the evidence to go to the jury, a motion for a directed verdict must be made at the close of the plaintiff’s case and renewed at the close of the evidence.13 Like evidentiary objections, motions for directed verdict must state specific grounds, and only those grounds will be considered on appeal.14

After moving for a directed verdict, the movant should also move for judgment in accordance with the motion for directed verdict if he or she wishes to appeal the denial of the directed verdict or the sufficiency of the evidence.15 The motion for judgment in accordance with the motion for directed verdict may be joined with the motion for new trial.16

A party who fails to move for directed verdict at trial waives any right to later request a judgment notwithstanding the verdict.17

If the defendant was entitled to a directed verdict at the close of the plaintiff’s case, but the trial court denied it, any deficiencies that existed in the plaintiff’s case may be cured by evidence admitted in the defendant’s case because the trial court’s ruling on a directed verdict motion at the end of the case is based on all of the evidence.18

Land Mine #6: Mistrial
A party who objects, receives a ruling sustaining the objection, and receives a corrective instruction should still move for a mistrial if he or she believes the instruction has not remedied the problem.19

A party must move promptly for a mistrial, although not necessarily in the next breath following the comment.20 & #x201c;The trial court has the power to wait until the jury returns its verdict before ruling on a motion for mistrial.”21 Further, a motion for mistrial is not necessarily waived by moving counsel also asking that the court reserve ruling until after the jury returns a verdict.22 Empowering a trial court to reserve ruling on a motion for mistrial conserves judicial resources and prevents a wrongdoer from profiting from intentional misconduct.23

There is no need to make a motion for mistrial if the original objection is overruled. That alone will preserve the issue for review.24

If the court grants your motion for mistrial before the jury is discharged, any verdict returned is void. However, when the judge reserves ruling on a mistrial motion until after the trial, or the motion is not made until after the discharge of the jury, then the motion must be considered a motion for new trial.25

Note that the timeliness of a motion for mistrial is extremely important. Some litigants will make a tactical decision to take their chances with the jury, and if they lose, they will simply move for a new trial. But the appellate courts are wary of such strategies and have held that by failing to move for a mistrial during trial, the litigant has failed to preserve the error for further review.26

Land Mine #7: Misconduct of Counsel
Challenging attorney misconduct requires close attention to specific procedures. When a party objects to attorney misconduct during trial, including improper argument, and the objection is sustained, the party must also timely move for a mistrial or request a curative instruction in order to preserve the issue for a trial court’s review of a motion for new trial. If the issue is not preserved in this manner, then the conduct is subject to fundamental error analysis under the trial court’s opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1027 (Fla. 2000).27

Under Murphy ’s fundamental error analysis, the party moving for a new trial “must first establish that the argument being challenged is, in fact, improper.”28 The party must then establish that the argument is harmful, which requires that “the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.”29 Third, the improper comment must be incurable, meaning that sustaining a timely objection and a curative instruction “could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.”30 Finally, the party must “establish that the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”31 This category must be narrow in scope — for example, “appeals to racial, ethnic, or religious prejudices.”32 Once a party has demonstrated all four requirements, that party is entitled to a new trial on the basis of “fundamental error.”33 On appeal of the trial court’s decision to grant or deny a new trial, the appellate court applies an abuse of discretion standard of review.34

If the objection to attorney misconduct is overruled, a motion for mistrial would be futile; under those circumstances, a motion for mistrial is not necessary to preserve the issue for review.35 Additionally, review of any objection made during closing argument is limited to the grounds stated in the objection.

Land Mine #8: Jury Instructions
Fla. R. Civ. P. 1.470(b) mandates that no party may claim the giving of a jury instruction as error unless that party objects thereto at the charge conference, or the failure to give any instruction unless that party requested the same.36 Any objection to a jury charge must be timely made, and an objection asserted after the jury has retired to deliberate is untimely and cannot be raised on appeal.37 Like other objections, specific grounds must be stated.38

To preserve for review the trial court’s refusal to give an instruction, the requested instruction must be reduced to writing.39 The requested instruction must be brought to the trial court’s attention, and not merely filed.40

The writing requirement may be excused in cases when a standard instruction is requested,41 when the circumstances make submitting a written request difficult,42 or when submission of a written instruction would be futile.43

Land Mine #9: Jury Verdict
To preserve for appellate purposes any error created by the receipt of an internally inconsistent verdict, an objection must be made before the jury is discharged.44 inadequate verdicts are challenged by motion for new trial.45

A major land mine regarding jury verdicts is the two-issue rule. That rule provides: “[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.”46

If two or more issues relating to a single claim for damages have been submitted to a jury on a general verdict form, an error affecting only one of the issues will not invalidate the verdict. The use of a general verdict form makes it impossible to determine whether the error complained of contributed to the ultimate decision. Because the decision of the jury may have been based on an issue unrelated to the alleged trial error, the aggrieved party cannot establish a basis for reversal.47

The “two-issue” rule is an economical tool that limits appellate review to issues that actually affect the case. Litigants can avoid application of the rule by simply requesting a special or interrogatory verdict form that will reveal the reason for the jury’s decision, thereby enabling the trial attorney to determine whether the decision was affected in any way by the alleged error. “It should be remembered. . . that the remedy is always in the hands of counsel.”48

The two-issue rule applies to actions brought on two theories of liability, as to which just a single basis for damages applies.49 It does not apply when two distinct claims for liability result in separate claims for damages in the same action.50

Land Mine #10: Motion for New Trial
A motion for new trial and order entered thereon is a prerequisite to challenging the sufficiency (manifest weight) of the evidence on appeal.51 The same rule exists for challenging the inadequacy or excessiveness of the verdict.52 Merely alleging in a motion for a new trial that the verdict is contrary to the manifest weight of the evidence will not be sufficient to preserve for review inadequacy or excessiveness of the damages.53 A motion for new trial is not required to review issues unrelated to the sufficiency of the evidence, such as rulings on evidence and jury instructions.54
Hopefully a working knowledge of some of these key fundamentals will help you successfully navigate through the many potential land mines facing today’s trial lawyer.

1 Of course, there are many land mines in litigation, but these 10 are those the author believes to be some of the most common.

2 See Pound v. Steenberge, 36 So. 3d 671 (Fla. 2d D.C.A. 2010); Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d D.C.A. 1992); Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d D.C.A. 1992) (“A motion for rehearing is authorized only after entry of a final order or judgment.”) See also Fla. R. App. P. 9.020(h).

3 Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986).

4 See Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990); Griefer v. DiPietro, 625 So. 2d 1226 (Fla. 4th D.C.A. 1993); Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. 4th D.C.A. 2004).

5 Couch v. Dunn Ave. Shell, Inc., 803 So. 2d 803 (Fla. 1st D.C.A. 2001).

6 Philip Morris, Inc. v. French, 897 So. 2d 480 (Fla. 3d D.C.A. 2004); Tucker v. Allstate Ins. Co., 842 So. 2d 1029 (Fla. 2d D.C.A. 2003); Horne v. Hudson, 772 So. 2d 556 (Fla. 1st D.C.A. 2000).

7 Fla. R. Civ. P. 1.450(a); Fla. Stat. §90.104(1)(b); Callihan v. Turtle Kraals, Ltd., 523 So. 2d 800 (Fla 3d D.C.A. 1988); Diaz v. Rodriguez, 384 So. 2d 906 (Fla. 3d D.C.A. 1980).

8 Musachia v. Terry, 140 So. 2d 605 (Fla. 3d D.C.A. 1962).

9 Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, 884 So. 2d 1087 (Fla. 4th D.C.A. 2004); Venture Homes, Inc. v. Pratt, 769 So. 2d 435 (Fla. 4th D.C.A. 2000).

10 Wilson v. Health Trust, Inc., 640 So. 2d 93 (Fla. 4th D.C.A. 1994); see also Rezzarday v. W. Fla. Hosp., 462 So. 2d 470 (Fla. 1st D.C.A. 1984) (appellate argument that evidence should have been admitted under admissions exception to hearsay rule not preserved when that ground for admission not asserted below).

11 MacDonald v. Dep’t of Children & Families, 855 So. 2d 1270 (Fla. 4th D.C.A. 2002).

12 Id.

13 Miami v. Swift, 481 So. 2d 26 (Fla. 3d D.C.A. 1985)

14 Perlman v. Ferman Corp., 611 So. 2d 1340 (Fla. 4th D.C.A. 1993); Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3d D.C.A. 2000).

15 See Honda Motor Co. v. Marcus, 440 So. 2d 373 (Fla. 3d D.C.A. 1983); Fla. R. Civ. P. 1.480(b).

16 Fla. R. Civ. P. 1.480(c).

17 Allstate Ins. Co. v. Gonzalez, 619 So. 2d 318 (Fla. 3d D.C.A. 1993); Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985); Fla. R. App. P. 1.480(b).

18 McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992); Jones v. Rives, 680 So. 2d 450 (Fla. 1st D.C.A. 1996).

19 Weise v. Repa Film Int’l., Inc. , 683 So. 2d 1128 (Fla. 4th D.C.A. 1996).

20 Ed Ricke & Sons, Inc. v. Green & Through Swan, 468 So. 2d 908 (Fla. 1985).

21 Id. at 910.

22 Id.; see also Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010).

23 Ed Ricke, 468 So. 2d at 910.

24 Holton v. State, 573 So. 2d 284 (Fla. 1990); Goff v. 392208 Ontario, Ltd., 539 So. 2d 1158 (Fla. 3d D.C.A. 1989); Robinson v. State, 989 So. 2d 747 (Fla. 2d D.C.A. 2008).

25 Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 1083 (Fla. 1993).

26 See KMart Corp. v. Hayes, 707 So. 2d 957 (Fla. 3d D.C.A. 1998).

27 See Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010).

28 Murphy, 766 So. 2d at 1028.

29 Id. at 1029.

30 Id.

31 Id.

32 Id.

33 Id. ; Sullivan v. Kanarek, 79 So. 3d 900 (Fla. 2d D.C.A. 2012).

34 Murphy, 766 So. 2d at 1031.

35 Newton v. So. Fla. Baptist Hosp., 614 So. 2d 1195 (Fla. 2d D.C.A. 1992); Simpson v. State, 418 So. 2d 984 (Fla. 1982).

36 Accord Converse v. Dep’t of Children & Families, 823 So. 2d 295 (Fla. 1st D.C.A. 2002). Note that the Florida Supreme Court has recognized an exception if the error resulted in a denial of the process. Id. at 296, citing Ray v. State, 403 So. 2d 956 (Fla. 1981).

37 City of Sunrise v. Bradshaw, 470 So. 2d 804 (Fla. 4th D.C.A. 1985); Wages v. Snell, 360 So. 2d 807 (Fla. 1st D.C.A. 1978).

38 Feliciano v. School Bd. of Palm Beach County, 776 So. 2d 306 (Fla. 4th D.C.A. 2000).

39 Jackson v. Harsco Corp., 364 So. 2d 808 (Fla. 3d D.C.A. 1978); Ellis v. Golconda Corp., 352 So. 2d 1221 (Fla. 1st D.C.A. 1977), cert. denied, 365 So. 2d 714 (Fla. 1978).

40 Luthi v. Owens-Corning Fiberglass Corp., 672 So. 2d 650 (Fla. 4th D.C.A. 1996).

41 Marley v. Saunders, 249 So. 2d 30 (Fla. 1971).

42 Morowitz v. Vistaview Apartments, Ltd., 613 So. 2d 493 (Fla. 3d D.C.A. 1993) (written submission excused in light of exigencies of trial).

43 State Farm Mut. Auto. Ins. Co. v. Monacelli, 486 So. 2d 630 (Fla. 3d D.C.A. 1986).

44 Lucas v. Orchid Island Properties, Inc., 982 So. 2d 758 (Fla. 4th D.C.A. 2008).

45 Ellender v. Bricker, 967 So. 2d 1088 (Fla. 2d D.C.A. 2007) (motion for new trial proper method to challenge verdict awarding plaintiff zero past and future noneconomic damages even though evidence showed that plaintiff suffered permanent impairment); DiMare, Inc. v. Robertson, 758 So. 2d 1193 (Fla. 3d D.C.A. 2000) (verdict awarding $14,000 for past medical expenses, but nothing for pain and suffering); Avakian v. Burger King Corp., 719 So. 2d 342 (Fla. 4th D.C.A. 1998) (verdict awarding plaintiff $1 for past and $1 for future noneconomic damages).

46 Zimmer, Inc. v. Birnbaum, 758 So. 2d 714, 715 (Fla. 4th D.C.A. 2000), citing Whitman v. Castlewood Int’l Corp., 383 So. 2d 618, 619 (Fla. 1980).

47 See Zimmer, Inc., 758 So. 2d at 715. (“The rule is based on the principle that reversal is improper where no error is found as to one of the issues that can independently support the jury’s verdict.”); Treal Group, Inc. v. Custom Video Servs., 682 So. 2d 1230 (Fla. 4th D.C.A. 1996).

48 Barth v. Khubani, 748 So. 2d 260, 261 (Fla. 1999), citing Colonial Stores v. Scarbrough, 355 So. 2d 1181, 1186 (Fla. 1977).

49 Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990, 996 (Fla. 4th D.C.A. 2004).

50 Id.; First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536, 538 (Fla. 1987).

51 J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So. 2d 367 (Fla. 3d D.C.A. 2002).

52 Cowart v. Kendall United Methodist Church, 476 So. 2d 289 (Fla. 3d D.C.A. 1985).

53 Paul v. Kanter, 155 So. 2d 402 (Fla. 3d D.C.A. 1963).

54 Winn & Lovett Grocery Co. v. Luke, 24 So. 2d 310 (Fla. 1945); Sheehan v. Allred, 146 So. 2d 760 (Fla. 1st D.C.A. 1962); Smith v. McCullough Dredging Co., 152 So. 2d 194 (Fla. 3d D.C.A. 1963).

Jennifer S. Carroll is an AV-rated, board certified appellate attorney in South Florida. Carroll practices in all state and federal appellate courts in Florida, as well as the 11th Circuit Court of Appeals and the U.S. Supreme Court.

This column is submitted on behalf of the Appellate Practice Section, Jack R. Reiter, chair; Kristin A. Norse, editor; and Chris McAdams, Brandon Christian, and Kristi Rothell, assistant editors.

Appellate Practice