Juror Goes on Social Media Rant – No New Trial

I once had a case where a prospective juror went on Facebook during  a break in voir dire to make some rather colorful comments about the process. That juror was dismissed. This is a post about a juror whose social media posts were not uncovered until after the trial. Warning – a few of the tweets feature obscene language.

In this car accident case, the juror – Juror 5 – waited until the middle of the trial to go on a twitter rant. Several of the tweets are cited in the opinion, but it turns out they are still up on Twitter and make for classic insight into the mind of a juror:

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“After conducting two hearings, the trial court granted the motion for juror interview. During the interview, Juror 5 admitted that the Twitter account in question, although titled under a pseudonym, was his and that he posted all of the tweets at issue. The trial court asked Juror 5 about his understanding of the court’s instruction to not communicate about the case or his jury service on social media. Juror 5 responded that he thought the instruction “pretty much” meant “don’t talk about the case.” Juror 5 testified that he did not tweet while sitting in the courtroom during the trial and that he did not intentionally or deliberately disobey the court’s order regarding the use of social media. Finally, Juror 5 denied telling anyone else his views about the case at any time prior to the commencement of deliberations.”

The Plaintiff moved for a new trial, pursuant to Rule 1.530, and the trial court ultimately denied the motion.

On appeal, the Fourth DCA reviewed the Motion for New Trial using an abuse of discretion standard. The Fourth DCa noted that (1) “the trial court necessarily credited and accepted Juror 5’s explanation that this misconduct was neither intentional nor willful, and that none of his tweets related specifically to this case”; (2) “There is no evidence that any of the other jurors saw, or had any discussions about, Juror 5’s tweets”; and (3) “nothing in the plain language of Juror 5’s tweets discusses any facts specific to this case or the parties involved.”

The Plaintiff also alleged that the tweet “[e]veryone is so money hungry that they’ll do anything for it” implied the juror was biased. However, the Fourth DCA notes that the juror expressed similar opinions during voir dire, such as: some people sue “just for the money” or for “dumb reasons.”

Ultimately, the Fourth DCA upheld the trial court’s denial of Plaintiff’s Motion for New Trial finding that the trial court did not abuse its discretion in denying the motion.

This case is also notable for including a definition of Twitter:

“Twitter is a real-time information network that lets people share and discuss what is happening at a particular moment in time through the use of ‘tweets,’ updates composed of 140 characters or less. The service allows users either to Direct Message (DM) specific individuals or to use ‘twitter posts’ accessible to the public. The process of posting messages on Twitter is commonly referred to as ‘tweeting.’ ” Dimas-Martinez v. State, 385 S.W. 3d 238, 243 n.3 (Ark. 2011) (citation omitted).

MICHELE L. MURPHY v. MICHAEL B. ROTH, Case No. 4D14-4830 (Fla. 4th DCA Oct 5, 2016)

New Trial As a Result of Inflammatory Closing Argument

In this case, the defendant made a closing argument to the jury that shifted the focus of the case from compensating the plaintiff to punishing the defendant, “to make the defendant care, ‘take responsibility,’ or say it was sorry.”  The appellate court reversed, holding, “The closing argument was designed to inflame the emotions of the jury rather than prompt a logical analysis of the evidence in light of the applicable law.”

Hill v. New Horizons Of The Treasure Coast, Inc., 39 Fla. L. Weekly D2311a (Fla 4th DCA Nov. 5, 2014).







Matter Not At Issue – Reversible Error

In this mortgage foreclosure case, the trial court set the matter for trial within twenty days of the date on which the defendant answered the Complaint.  Defense counsel objected to the trial proceeding as scheduled.  For a matter to be at issue, and thus ready for trial, Rule 1.440 requires that at least twenty days must pass from the date of service of the last pleading.  The Third DCA found that the ‘too fast’ trial date was reversible error.

LOPEZ v. U.S. BANK, 38 Fla. L. Weekly D1471a (Case No. 3D13-458 July 3, 2013)

Dismissal for Fraud on the Court Not Available to Resolve Jury Questions – Herman v. Silver

In this medical malpractice case, a husband sued after his wife died allegedly from kidney failure after the defendant doctor performed surgery. At the trial, the husband testified about various issues, including his wife’s active lifestyle before the surgery, and date of the onset of kidney problems. After the trial, the husband quarrelled with his daughter, who then advised defense counsel that they both had “lied” while testifiying at the trial regarding issues in the case. She also advised about the existence of a diary that the husband failed to produce in response to a discovery request; the diary, among other things, contradicted the husband’s testimony regarding the onset of the kidney problems. The trial court dismissed the case after an evidentiary hearing. The appellate court reversed, holding: “The evidentiary conflicts regarding Mrs. Herman’s activity levels presented a classic jury question, and hardly amounted to clear and convincing evidence that the plaintiff undertook a scheme calculated to interfere with the judicial system’s ability to impartially adjudicate the matter.”

Herman v. Silver, 38 Fla. L. Weekly D908a (Fla. 4th DCA Apr. 24, 2013).

City of Tampa v. Ramiro Companioni, Jr., 34 Fla. L. Wkly D1777a (Fla. 2d DCA Aug. 28, 2009)

In this motorcycle injury case, the trial court found that plaintiff’s counsel had engaged in misconduct throughout the trial but nonetheless denied defendant’s motion for new trial. The trial court reasoned that because defense counsel did not move for a mistrial after the court had sustained various objections, the defense had waived any right to a new trial. The trial court ruled further that under the circumstances the defense could not show that “failure to grant a new trial would undermine the public’s confidence in the justice system.” The Second District reversed and held that the trial court used the wrong standard, stating that the trial court “only needed to consider whether opposing counsel’s misconduct deprived the [defendant] of a fair trial. Having found that it did, the trial court should have granted the City’s motion.” 

City of Tampa v. Ramiro Companioni, Jr., 34 Fla. L. Wkly D1777a (Fla. 2d DCA Aug. 28, 2009)

RICHARD PARISI v. MICHAEL MIRANDA, individually, and on behalf of ISLAND SHORE HOMES, INC., 34 Fla. L. Wkly D1476a (Fla. 4th DCA July 22, 2009)

In this case, a shareholder received a jury verdict awarding him damages individually.  After entry of the verdict, defendants filed a motion for new trial and judgment notwithstanding the verdict (JNOV) because the shareholder’s expert valued the stock as of the incorrect date.  The trial court denied the motion because, among other reasons, defendants had not moved for a directed verdict at the close of the evidence.  The appellate court affirmed the portion of the order denying a JNOV, but reversed the portion of the order denying a new trial.  The court held that the verdict was contrary to the manifest weight of the evidence, and while the absence of a directed verdict motion barred a JNOV, it did not bar a new trial. 

Cabrera v. Pazos (Fla. 2d DCA March 2, 2006)

In Cabrera v. Pazosthe Second DCA found that “once a party files a proper rule 1.440(b) notice that a matter is ready for trial, it is the court’s duty to set the cause for trial. See Young, 730 So. 2d at 766 (“[I]t is the trial court’s responsibility to enter an order setting a date for trial, and it is the filing of the notice which bars the court from dismissing the action for lack of prosecution.”). Failure of the trial court to set the case for trial precludes dismissal for failure to prosecute despite the lack of record activity. Reyes, 895 So. 2d at 1274-75; see Pierstorff v. Stroud, 454 So. 2d 564, 565 (Fla. 2d DCA 1983). This matter was never scheduled for trial after Mr. Cabrera filed his notice for jury trial.

The trial court abused its discretion when it dismissed Mr. Cabrera’s complaint for failure to prosecute pursuant to rule 1.420(e). Accordingly, we reverse the final judgment of dismissal and remand for further proceedings.”