NEXT CASE ON THE COURT'S ORAL ARGUMENT CALENDAR IS ROBERTS VERSUS TAYE HEED A. -- TEJADA. MR. KLEINBERG.
GOOD MORNING, MAY IT PLEASE THE COURT. MY NAME IS DAVID KLEINBERG,, AND I AM HERE ON BEHALF OF LUCILLE AND FRED ROBERTS. THIS IS A, AND I COULD, I WOULD WISH TO RETAIN FIVE MINUTES FOR REBUTTAL. THIS IS A MEDICAL NEGLIGENCE CASE, INVOLVING A FATAL OVERDOSE OF FUDR CHEMOTHERAPY, FROM WHICH FRED ROBERTS SUFFERED THE IN DIGITY OF DEATH BY DIARRHEA, AND THROUGH WHICH LUCILLE ROBERTS LOST HER CHILDHOOD SWEETHEART AND HUSBAND OF NEARLY 50 YEARS. HOWEVER, IT COMES BEFORE THIS COURT ON A VERY NARROW AND SPECIFIC LEGAL ISSUE, AND IT IS A LEGAL ISSUE THAT IS SO FUNDAMENTAL TO OUR JUDICIAL SYSTEM AND SO INGRAINED IN OUR HISTORY AND SENSE OF FAIRNESS, AS TO BE AN INALIENABLE RIGHT. IN THIS CASE, THE ROBERTS WERE DEPRIVED OF A FAIR TRIAL BY A JURY OF THEIR PEERS, A COMPETENT HONEST, FAIR JURY OF THEIR PEERS.
DO YOU AGREE THAT DELLA ROSA IS CONTROLLING?
IS --
DELLA ROSA IS CONTROLLING HERE. DO YOU AGREE?
CLEARLY THE DELLA ROSA CASE CONTROLS THE ISSUE OF JUROR MISCONDUCT, JUROR NONDISCLOSURE. YES, SIR.
HOW DO YOU DISTINGUISH THIS CASE FROM IT THEN?
I DON'T. I THINK THIS CASE --
YOU THINK --
THIS CASE IS DELLA ROSA. THIS COURT, PARTICULARLY, JUSTICES WELLS, SHAW, HARDING, AND I BELIEVE YOU WROTE THE OPINION, JUSTICE ANSTEAD, CLEARLY STATED AND WENT BACK 50 YEARS INTO OUR HISTORY, THE RIGHT TO A FAIR TRIAL BY HONEST JURORS IS SO FUNDAMENTAL AND SO INALIENABLE, AND THAT ANY MISCONDUCT BY A JUROR, IN FAILING TO DISCLOSE THEIR HISTORY, IN FAILING TO RESPOND TRUTHFULLY AND FULLY, DEPRIVED THE LITIGANTS OF THE RIGHT TO A FAIR TRIAL.
ISN'T -- GO AHEAD. BUT ISN'T THE POINT, HERE, THAT IT IS THE APPLICATION OF DELLA ROSA, PARTICULARLY WHAT STEPS HAVE TO BE TAKEN BY COUNSEL, IN ORDER TO BALANCE THE FINALITY NECESSARY FOR, WITH A JURY VERDICT, AGAINST WHAT WAS THE STATEMENTS THAT WERE MADE AND THE REMOTENESS, IN TIME, OF THESE TWO PARTICULAR PROBLEMS?
WELL, YOUR HONOR, YOU THREW A COUPLE OF THINGS OUT THERE, AND I WOULD LIKE TO ADDRESS THEM INDIVIDUALLY. THE FIRST DEALS WITH THE FINALITY ISSUE. THERE HAS BEEN MUCH MADE THAT THE PUBLIC NEEDS FINALITY, AND YOUR HONOR, I SUBMIT TO YOU, IN ALL DUE CANDOR, THAT FINALITY APPEALS IN COMPARISON -- PALES IN COMPARISON TO THE NEED OF THE PUBLIC TO HAVE KNOWLEDGE THAT THE TRIAL WAS FAIR, AND JUST BECAUSE IT IS EXPEDIENT TO SAY IT IS OVER, DOES NOT GIVE THE PUBLIC THE CONFIDENCE THAT THE JUDICIARY SYSTEM IS WORKING. SO TO THE EXTENT THAT FINALITY NEED BE WEIGHED WITH FAIRNESS, IT IS NOT CLOSE. IN THIS CASE, AS TO REMOTENESS, I HAVE ADDRESSED IN MY BRIEF, SEVERAL EXAMPLES. AND THE BEST THING I CAN SAY TO YOU, YOUR HONOR, IS PEOPLE ARE PEOPLE. WE ARE HUMAN BEINGS. WE SUFFER THE FRAILTY OF THE HUMAN CONDITION, AND WE CARRY WITH US BAGGAGE. EVERY MEMBER OF THIS PANEL, MYSELF, AND EVERY OTHER PERSON HAS BY ASSIST AND PREJUDICES THAT DO NOT ERODE WITH TIME.
ALL RIGHT. BUT THE QUESTION HERE, IS THAT WHETHER THERE IS THIS MATTER IS, REALLY, A FACT-INTENSIVE SITUATION THAT HAS TO BE JUDGED CASE BY CASE, THIS ONE WAS JUDGED. OR WHETHER THERE IS SOME OVERRIDING LEGAL PRINCIPLE THAT IS CAUSING SOME DEGREE OF DIFFICULTY THAT THIS COURT SHOULD ADDRESS. I MEAN, THAT --
WELL, AGAIN, I THINK I NEED TO ANSWER THAT IN TWO PARTS. FIRST OF ALL, YOUR HONOR IS IMMINENTLY CORRECT. THIS IS FACTUALLY INTENSIVE, AND THE TRIAL COURT, IN THIS CASE, MADE FACTUAL FINDINGS, SPECIFIC FINDINGS, AFTER TEN MONTH'S LABOR, AFTER FIVE HEARINGS, AFTER MOTION AND MOTION AND DOCUMENTATION THAT THICK, BEING SUBMITTED TO THE COURT, MADE FINDINGS OF FACT WHICH WERE COMPLETELY IGNORED AND SDARDED BY -- AND DISREGARDED BY THE THIRD DISTRICT COURT OF APPEALS, CONTRARY TO ITS REVIEW AND THE CANONS IT HOLDS. THERE IS SOMETHING WE CAN DO HERE, AND I BELIEVE IT IS A GOOD QUESTION. IT IS A FAIR QUESTION. THIS COURT, AND I APOLOGIZE ON NOT PICKING UP ON THIS UNTIL MOMENTS AGO. THIS COURT, ON MARCH 8 OF THIS YEAR, APPROVED AND ADOPTED A NEW JURY INSTRUCTION, RECOMMENDED BY THE COMMITTEE, WHICH, NOW, EXACTLY AS I HAVE ASKED IN MY BRIEF, INSTRUCTS THE JURY PANEL, YOU BETTER THINK THIS THROUGH, AND IF YOU ARE NOT SURE, YOU RAISE YOUR HAND, AND IF YOU DON'T TELL THE TRUTH, IF YOU WITHHOLD INFORMATION, THAT IS THE SAME AS A FALSEHOOD, AND YOU CAN AND WILL BE SUBJECTED TO CIVIL AND CRIMINAL PENALTIES. THIS HONORABLE COURT HAS NOW ADOPTED JUST THAT STANDARD, 1.0, AND I BELIEVE --
TO FOLLOW UP JUST AN A LITTLE ON -- JUST A LITTLE ON JUSTICE WELLS'S PREMISE, AND THAT IS THE PROP PROBLEMATIC NATURE OF THE APPLICATION -- OF THE PROBLEMATIC NATURE OF THE APPLICATION OF DELLA ROSA, AND WE NEED TO LOOK AT IT, BECAUSE IT APPEARS THAT DISTRICT COURTS ACROSS THE STATE ARE STRUGGLING WITH THE APPLICATION, SO IT DOES APPEAR THAT THIS IS ALMOST A "GOTCHA" KIND OF SITUATION, AFTER A TRIAL IS OVER, OR AT LEAST PERCEIVED THAT WAY. MAYBE IT IS NOT. BUT IT COMES DOWN TO THE ISSUE OF SO OFTEN WE, AS LAWYERS, TALK TO OURSELVES, AND WE USE WORDS THAT WE UNDERSTAND THAT MAYBE JURORS DON'T, SO WHAT PART DOES THAT PLAY, IN THIS ANALYSIS, AND WHAT PART DOES REMOTENESS PLAY, IN CONNECTION WITH THAT DISCUSSION? OR SHOULD IT PLAY OR DOES IT PLAY?
AS TO REMOTENESS, I DON'T THINK IT DOES. THAT IS MY OPINION. I DON'T THINK IT DOES. BUT I THINK WHAT YOUR HONOR IS ADDRESSING IS HOW IS IT APPLIED, AND THAT IS WHERE THERE IS A FAIL-SAFE. THERE IS A NET DOWN THERE. WE ARE NOT GOING TO FALL TO THE GROUND, AND THE NET IS THE DISCRETION OF A TRIAL JUDGE WHO SITS IN THE COURTROOM, WHO WATCHS THE FACES OF THE JURORS, WHO SEES THE INFLECTION OF THE VOICES, WHO SEES THEIR EYES FOGGED OVER WHEN THEY ARE CONFUSED.
DOES DELLA ROSA LEAVE ENOUGH DISCRETION WITH THE TRIAL JUDGE?
I BELIEVE IT DOES, AND I AM NOT ASKING THIS COURT TO MAKE A RULING, AND I DON'T KNOW THAT IT IS NECESSARY TOO THIS -- FOR THIS COURT TO MAKE A RULING THAT FIVE YEARS IS TOO REMOTE OR 20 YEARS IS TOO REMOTE OR THERE IS NO SUCH THING AS REMOTENESS, BUT I THINK WHAT I AM ASKING THIS COURT TO DO, SPECIFIC TO LUCILLE ROBERTS, IS TO SAY THAT THE TRIAL JUDGE MADE THESE FINDINGS OF FACT, AND THEY CANNOT BE ASSAILED AT THIS LEVEL, AND THE THIRD DISTRICT --
AS TO THE FINDINGS THAT WERE MADE, ARE YOU ASKING FOR A PER SE RULE AT THAT POINT?
ONCE A TRIAL JUDGE MAKES A FINDING THAT THERE WAS CONCEALMENT, THAT IT WAS RELEVANT, THAT IT WAS NOT THE PRODUCT OF A LACK OF DILIGENCE, THEN I BELIEVE THERE IS A PER SE RULE, AND THIS COURT HAS ALREADY MADE THAT PER SE RULE, AND IT IS CALLED DELLA ROSA, AND THE APPLICATION OF IT, OR THE REVIEW IT, RATHER, COMES --
BUT YOU HAD REVIEW AND IT IS RELEVANT, SO IT IS NOT A PER SE RULE, IF YOU READ THAT INTO IT. IT IS RELEVANT.
MAYBE I MIGHT ANSWER YOUR QUESTION TOO BROADLY. I THINK, AS TO PRIOR LITIGATION, FRANKLY, IF YOU ASKED A JUROR A QUESTION, NOW, IF I SAID DOES ANYONE HERE EVER, YOU KNOW, BORROWED A PENCIL IN SECOND GRADE AND DIDN'T RETURN, IT AND THEY SAY NO, AND I GO AND FIND THEIR SECOND-GRADE CLASSMATE WHO SAYS YES, YOU MIGHT HAVE SOME RELEVANCE PROBLEMS THERE, BUT I THINK THE WAY THIS COURT HAS SET UP DELLA ROSA, AND I THINK CORRECTLY, SO THE ISSUE OF LITIGATION HISTORY AND BIAS AND PREJUDICE INHERENT THERE TO IS SO INTERTWINED WITH THE ROLE OF A JUROR THAT, YES, IT IS RELEVANT, BUT IF A TRIAL JUDGE MAKES A FINDING OF FACT, HAVING DONE AN INTERVIEW, IF YOU WILL, OR HAVING SEEN AND BE THERE TO APPRECIATE, HE MAKES A FINDING THAT IS NOT RELEVANT, AND THEN IT COMES UP BASED ON REVIEW OF ABUSIVE DISCRETION. HERE THE TRIAL COURT NEVER MADE ABUSIVE DISCRETION AND NEVER FOUND OR ACKNOWLEDGED AS TO THE TRIAL JUDGE, SO THERE IS A NET DOWN THERE, JUSTICE LEWIS, AND IT IS CALLED THE TRIAL JUDGE, AND WE HERE AT THE THIRD LEVEL AND THE DISTRICT COURT AND ALL OF THE OTHER COURTS, WE RELY UPON THOSE TRIAL JUDGES TO DO THEIR JOB.
WHAT ABOUT LET'S GET TO THE -- GOAT TO -- LET'S GO TO THE THIRD PRONG, THE THIRD DISTRICT HAS SAID RECENTLY, AND THE OTHER TRIAL COURTS HAVE FOLLOWED, THAT IF THIS IS SOMETHING THAT COULD BE EASILY ASCERTAINED PRIOR TO THE COMMENCEMENT OF JURY SELECTION, THAT IS A QUICK SEARCH OF THE CLERK'S RECORDS, THEN THAT SHOULD GO TO THE DUE DILIGENCE PRONG. WHAT -- SOME OF US WERE TRIAL LAWYERS. IT HAS BEEN A FEW YEARS FOR SOME OF US, BUT WHAT IS WRONG WITH THAT, AS A POLICY PRINCIPLE, BECAUSE IT DOES CUT BOTH WAYS. YOU HAVE A LONG TRIAL, AND NOW THE NEW GAME IN TOWN IS EACH SIDE GOES, IF THEY ARE NOT HAPPY WITH THE VERDICT, AND THEY GO AND THEY TRY TO FIND WHAT THEY CAN ON THE JUROR, AND WHAT THE THIRD DISTRICT SEEMS TO BE SAYING IS, WAIT A SECOND. IF YOU COULD GO DOWNSTAIRS AND THAT INFORMATION IS RIGHT THERE, AND YOU COULD FOLLOW-UP, AND ESPECIALLY HERE YOU HAVE GOT SOMEBODY WHO, WHERE THE AUTOMOBILE ACCIDENTS WERE ALMOST 30 YEARS AGO, WHY PUT THE SYSTEM IN THAT POSITION? WHAT IS -- TELL ME, FROM A PRACTICAL OR POLICY POINT OF VIEW, WHY THAT IS NOT A GOOD IDEA?
YOUR HONOR, YOU HAVE TOUCHED UPON WHAT, TO ME, IS THE MOST TROUBLING PART OF THE THIRD DISTRICT COURT'S OPINION. MY FIRST RESPONSE IS THIS COURT HAS ALREADY TOLD THEM NO. THEY TRIED TO DO IT IN DELLA ROSA, ONE, WHEN IT WAS BEFORE THE THIRD DISTRICT COURT OF APPEALS. THIS COURT SENT A RESOUNDING "NO". WE WILL NOT REQUIRE TRIAL LAWYERS TO DO INTERTRIAL OR PRETRIAL INVESTIGATION.
WE ADOPTED THE DISSENTING OPINION. IT IS NOT EXPRESSLY IN THE DELLA ROSA OPINION. I WOULDN'T CALL THAT RESOUNDING.
OKAY. BUT I MEAN, WHEN THIS COURT ADOPTS AN OPINION, I PERSONALLY HIM GOING TO RESPOND TO IT AND RECOGNIZE IT AND TREAT IT AS BINDING PRECEDENT, AS I THINK THE THIRD DISTRICT COURT WAS REQUIRED TO DO.
BUT NOW WE HAVE THE BENEFIT OF SEEING HOW MANY CASES ARE COMING UP TO THE APPELLATE COURTS, AND IT SEEMS THAT THIS IS, AGAIN, AND THIS IS WHAT JUSTICE LEWIS IS TALKING ABOUT, IT IS STARTING TO LOOK LIKE IT IS A LITTLE BIT OF A GAME THAT IS GOING ON.
LET ME RESPOND TO YOU, AS BEST I CAN. FIRST OF ALL, THERE IS NOT THAT MANY CASES. THERE IS LESS THAN A DOZEN CASES OUT OF TENS OF THOUSANDS OF JURY TRIALS, SINCE DELLA ROSA WAS DECIDEDED IN 1995. THAT IS LIKE SAYING THAT WRITS OF HABEAS CORPUS OR INEFFECTIVE ASSISTANCE OF COUNSEL ARE GAMES. WHY DIDN'T YOU STAND UP IN THE MIDDLE OF THE TRIAL AND SAY IT IS INEFFECTIVE ASSISTANCE OF COUNSEL. WHY DOES HE WAIT FOR AN ADVERSE VERDICT? YOUR HONOR, IT IS NOT A GAME OF "GOT CHA" AND IT IS NOT A DO OVER. IT GOES TO THE EFFECTS OF THE JURY.
WHAT IS WRONG WITH THE REQUIREMENT OF HAVING A LAWYER FIND WHAT IS READILY AVAILABLE IN A REASONABLE TIME? WHAT IS WRONG WITH THAT REQUIREMENT?
TWO THINGS. MAYBE EVEN MORE THAN THAT. THE FIRST IS IT IS UNWORKABLE. I REMEMBER WHEN I READ MY FIRST JOHN GRISHAM BOOK, AND WE GOT A LISTING OF THE POTENTIAL VENIRE TWO WEEKS BEFORE TRIAL. I HAVE BEEN TRYING CASES FOR 14 YEARS. WE HAVE NEVER SEEN THAT BEFORE. WE GET IN THERE. IT IS TEN O'CLOCK ON A MONDAY MORNING. I HAVE GOT AN HOUR OF VOIR DIRE JURY INSPECTION, AND I HAVE GOT AN HOUR FOR A JUROR TO GET UP ON A STAND, AND I AM NOT GOING TO GET TO IT.
WE HAVE SOME CASES WHERE WE COULD BE INSERT JURISDICTIONS WHERE IT IS VERY EASY TO ASCERTAIN THAT AND SHOULDN'T THAT BE -- SHOULD THAT BE PART OF THE IS MOVING PARTY'S BURDEN, AS FAR AS THE DUE DILIGENCE PRONG, TO SAY IT IS NOT WORKABLE IN THIS CASE, AND THERE IS A RECORD THEN?
I THINK IT IS PART OF THE BURDEN OF THE MOVING PARTY, TO PROVE DILIGENCE, AND I THINK IN THIS CASE IT WAS DONE.
I AM ASKING YOU WHY SHOULDN'T THE DILIGENCE PART BE WHETHER THE RECORDS WERE READILY AVAILABLE OR NOT.
AGAIN, THERE IS INSUFFICIENT TIME TO GO DO THAT, NUMBER ONE. NUMBER TWO, IN THIS CASE, AND LET'S SEE IF WE CAN'T FOCUS ON THIS CASE FOR A MOMENT, AND THEN WE GO TO THE OVERALL PICTURE. THIS THIS CASE --
IT TOOK A PICTURE THAT SHE IS ASKING FOR, WHICH IS WHAT WOULD HAVE HAPPENED IN THE DADE COUNTY COURTHOUSE, HAD YOU TRIED TO DO IT? I THINK THAT IS WHAT SHE IS ASKING. WAS IT PRACTICAL?
ASSUMING I WENT DOWNSTAIRS AND WAITED IN LINE AND I GOT A CLERK AND WAITED AND ASKED THEM TO PRINTOUT THIS THING. WHAT I WOULD SEE IS 400 ENTRIES FOR ONE JUROR AND 600 ENTRIES ON ARTURO MENENDEZ, AND I HAVE GOT THOSE TWO NAMES ON THE PANEL. WHAT DO I DO NOW? NOT TO MENTION THAT SOME OF THE RECORDS WERE OLD AND IN THIS CASE THEY HAD TO BE OBTAINED OFF SITE. I HAD TO SEND AWAY TO HISTORICAL ARCHIVES AND PULL MULTIPLE BOXES FROM A STORAGE BUILDING. THEY HAD TO GET THEM FROM A STORAGE BUILDING. IT TOOK TEN MONTHS TO SUFFICIENTLY BEAR MY BURDEN, WHICH I DID, AND TO PROVE IN THIS CASE THAT THERE WAS NONDISCLOSURE, AND THE TRIAL JUDGE FOUND THE FACT THAT IT COULD NOT POSSIBLY HAVE BEEN DUE TO A LACK OF DUE DILIGENCE, AND, I THINK, YOUR HONOR, WE MISS THE POINT. THE POINT IS IT THE LAWYER'S OBLIGATION TO GO AND INVESTIGATE AND CROSS-EXAMINATION AND INTERROGATE JURORS? THAT IS NOT OUR JOB. THE JOB IS FOR THE JUROR TO RAISE THEIR RIGHT HAND AND SWEAR TO TELL THE TRUTH, AND JITION MONTHS AGO THIS COURT, AND I COMMEND THIS COURT AND I AM HAPPY YOU DID IT, THIS COURT SAID LISTEN, MR. AND MS. JUROR, YOU BETTER TELL THE TRUTH, OR YOU ARE LOOKING AT CONTEMPT.
ONE OF THE JURORS, A CASE THAT OCCURRED OVER 25 YEARS AGO, WHERE SHE WAS THE PLAINTIFF, AND IN THIS CASE, WEREN'T THERE, YOU REPRESENT THE PLAINTIFF, WOULDN'T YOU HAVE TO ESTABLISH THAT YOU WOULD HAVE, IT WOULDN'T BE AN EXCUSE FOR CAUSE. THAT YOU WOULD HAVE PRESENTORILY CHALLENGED HER?
FIRST I RESPECTFULLY SUBMIT THE ANSWER IS, NO, I DO NOT. I DON'T THINK I HAVE TO DO. THAT AS JUSTICE ANSTEAD WROTE, ADOPTING THE OPINION OF JUSTICE HATCHET MANY YEARS AGO, THE PREJUDICE IS PRESUMED. I DON'T HAVE TO PROVE THAT THIS PERSON, AS A PLAINTIFF, WOULD HAVE SIDEED FOR ME OR AGAINST ME OR I WOULD HAVE CHALLENGED HER. THE PREJUDICE IS PRULED. BUT THE SECOND THING I WOULD SAY IN RETURNS TO THAT, IS, YOUR HONOR, MR. BETANCOURT AND MR. RODRIGUEZ, TWO JURORS ON THIS PANEL WHO WERE JURORS WOULD HAVE TOLD ME OF THAT CASE, I STRUCK THEM. I STRUCK THEM.
YOU ARE INTO YOUR REBUTTAL TIME.
I APOLOGIZE. I WOULD RESPECTFULLY RESERVE THAT TIME. THANK YOU.
THANK YOU. MS. LEINICKE.
MAY IT PLEASE THE COURT. MY NAME IS SHELLY LEINICKE. I AM HERE ON BEHALF OF DR. TEJADA. IN THIS CASE THERE WAS NO CHALLENGE TO THE VERDICT PER SE. WHAT WE HAVE HERE IS A TRIAL COURT WHO VERY RELUCTANTLY FELT THAT HIS HANDS WERE ABSOLUTELY TIED BY A PER SE RULE AND ORDERED A NEW TRIAL, BECAUSE TWO JURORS DID NOT DISCLOSE REMOTE OR IRRELEVANT INFORMATION.
WHAT IS WRONG WITH THE PER SE RULE HERE? WHY SHOULDN'T WE HAVE A PER SE RULE? ISN'T A DEFENDANT ENTITLED TO HAVE A FAIR AND IMPARTIAL JUROR? -- I AM SPAR -- IMPARTIAL JURY?
BOTH PARTIES ARE ENTITLED TO A FAIR AND IMPARTIAL JURY, AND I DON'T BELIEVE DELLA ROSA IS A PER SE RULE. I DON'T BELIEVE DELLA ROSA IS SAYING THAT, IF THERE IS A FAILURE TO DISCLOSE, THERE IS AUTOMATICALLY, CATAGORICALLY, A NEW TRIAL. WHAT DELLA ROSA, IN FACT, SAYS, IS IF, IN FACT THERE, IS A NONDISCLOSURE, YOU THEN HAVE A THREE-PRONGED TEST THAT MUST BE MET TO DETERMINE WHETHER OR NOT THERE WAS PREJUDICE AND A BASIS FOR A NEW TRIAL. YOU MUST, IF THERE WAS A NONDISCLOSURE, SHOW THAT THERE WAS CONCEALMENT BY THE JUROR. YOU MUST, ALSO, SHOW THAT WHAT WAS, IN FACT, CONCEALED, WAS RELEVANT AND MATERIAL, AND YOU, ALSO, HAVE TO SHOW THAT THERE WAS DUE DILIGENCE IN THE INQUIRY THAT WAS MADE.
THE TRIAL JUDGE, IN THIS INSTANCE, WENT THROUGH THOSE, AND SO WHERE DID THE TRIAL JUDGE GO WRONG? WHAT -- WHERE IS THERE NOT SUBSTANTIAL EVIDENCE TO SUPPORT THE TRIAL JUDGE'S DETERMINATION ON EACH OF THOSE?
THE TRIAL JUDGE REPEATEDLY SAID THAT HE DID NOT THINK THAT EITHER OF THESE TWO JURORS WAS BEING UNTRUTHFUL. WE ATTACHED A COPY OF THE TRANSCRIPT OF THE HEARING ON THE MOTION FOR NEW TRIAL TO THE BRIEFS, IN THE THIRED DISTRICT COURT OF APPEAL -- IN THE THIRD DISTRICT COURT OF APPEAL, AND IT WAS CERTAINLY DISCUSSED WITH THE COURT THERE. THE TRIAL JUDGE SAID REPEATEDLY, IN THAT HEARING TRANSCRIPT, THAT HE WOULD NOT ASSUME THAT EITHER OF THE JURORS WAS BEING UNTRUTHFUL. HE SPECIFICALLY STATED THAT HE WAS NOT FINDING THERE WAS INTENTIONAL CONCEALMENT. HE WAS SPECIFICALLY STATING IN THERE, THAT HE THOUGHT THAT THE MATTER WAS REMOTE. HE SAID THAT HE HOPED THE THIRD DISTRICT SENT THE CASE BACK. THE TRIAL JUDGE SAID, AT PAGE 43 OF THAT TRANSCRIPT, THAT WHAT HE WAS SAYING IN THE TRANSCRIPT WAS CERTAINLY PART OF, WAS TO BE CONSIDERED BY THE THIRD COURT, BEYOND THE WRITTEN ORDER, AND HE SAID THAT HE THOUGHT THAT HE WAS SIMPLY BOUND BY DELLA ROSA, THAT BECAUSE THERE WAS THE NONDISCLOSURE BY THE JURORS, FOR WHATEVER REASON, THAT HE HAD NO ALTERNATIVE BUT TO SAY THAT THAT WAS -- THAT THAT WAS RELEVANT, THAT THERE WAS THE LACK OF DISCLOSURE, AND HE MUST REVERSE. RESPECTFULLY, THE THIRD DISTRICT AGREED WITH THE TRIAL JUDGE AND SAID TWO PRONGS OF DELLA ROSA CLEARLY WERE NOT MET. THERE WAS NO RELEVANCE OR MATERIALITY HERE, AND THERE WAS NO REMOTENESS. -- AND THERE WAS REMOTENESS. ALL IT TAKES IS ONE OF THESE PARTICULAR POINTS. AS TO THE ONE JUROR WHO, A YEAR OR SO EARLIER, HAD, ON HER OWN, FILED A DOMESTIC VIOLENCE COMPLAINT AND THEN NINE DAYS LATER WITHDRAWN IT, THAT CERTAINLY HAD NO RELEVANCE. THIS WAS A MEDICAL MALPRACTICE CASE. THIS WAS A MAN WHO WAS DYING OF CANCER. BEST CASE SCENARIO HAD 18 MONTHS TO LIVE. HE WAS GIVEN A COURSE OF TREATMENT THAT MIGHT ALLOW HIM TO REACH THAT 18 MONTHS, OR IT MIGHT NOT. PART OF IT DEPENDED ON WHETHER THE REST OF HIS BODILY SYSTEMS MAINTAINED THEIR INTEGRITY OR NOT.
WHY SHOULD WE -- YOU SEEM TO BE DRAWING A DISTINCTION THAT WE MUST HAVE THE SAME OR SIMILAR CASE, BUT IT SEEMS AS THOUGH DELLA ROSA IS REACHING FOR, MAYBE, SOMEONE HAS HAD A BAD EXPERIENCE WITH THE LEGAL SYSTEM NOT NECESSARILY CIVIL OR CRIMINAL, BUT IT IS JUST THAT SOMETHING HAS HAPPENED TO YOU WITH THE CIVIL SYSTEM, AND FOR GOOD OR BAD, MORE AND MORE OF OUR CITIZENS ARE ENCONSIDERING THE JUDICIAL SYSTEM, ONE -- OR ENCOUNTERING THE JUDICIAL SYSTEM ONE WAY OR ANOTHER.
EXACTLY, AND THE CASES HAVE COME BACK AND SAID THAT THERE SHOULD BE A NEW TRIAL BECAUSE OF NONDISCLOSURE HAVE BEEN EXACTLY THAT SITUATION, WHERE EITHER YOU HAVE A SIMILAR SITUATION WHERE I THINK THERE IS ABOUT 11 CASES IN THE LAST THREE YEARS OR SINCE 1998 ON THIS. EITHER YOU HAVE HAD A SIMILAR SITUATION THAT WAS NOT DISCLOSED. YOU HAVE HAD A PERSONAL INJURY CASE OR WHATEVER, OR YOU HAVE BEEN IN A SITUATION WHERE YOU HAD A NUMBER OF ENCOUNTERS WITH THE SYSTEM, WHERE YOU HAVE HAD FIVE JUDGMENTS AGAINST YOU, WHERE YOU HAVE SUED A NUMBER OF PEOPLE, WHERE ONE OF THE CASES, I THINK THERE WERE 20 PRIOR LAWSUITS. CERTAINLY THAT KIND OF INFORMATION, IF NOT DISCLOSED, WOULD, PERHAPS, INDICATE A BIAS OR PREJUDICE, BECAUSE YOU HAVE EITHER FOUND YOURSELF THE VICTIM OF THE SYSTEM, ON A NUMBER OF OCCASIONS, BY HAVING BEEN SUED, OR YOU HAVE USED THE SYSTEM AS A PLAINTIFF ON A NUMBER OF OCCASIONS, TO WHERE SOMEONE MIGHT FEEL THAT YOU HAVE A PREDILECTION THERE, BUT IN THIS SITUATION HERE, THE CASE THAT WE HAVE, THIS CASE SHOULD BE AFFIRMED, BECAUSE IN THIS CASE, NOTHING THAT THE JURORS DID NOT DISCLOSE HAD ANY RELEVANCE OR MATERIALITY OR WOULD HAVE SHOWN ANY RELATIONSHIP OR BIAS IN THIS CASE. AGAIN, WE HAVE A VERY COMPLICATED MEDICAL MALPRACTICE CASE, AND WE HAVE, ON THE ONE HAND, ONE JUROR WHO DID NOT DISCLOSE THAT SHE HAD HAD PENDING, FOR NINE DAYS, A DOMESTIC VIOLENCE CASE. THAT CERTAINLY DOES NOT INDICATE THAT SHE IS EITHER PRO-PLAINTIFF ANTI-PLAINTIFF, PRO DOCTOR, KNOWS ANYTHING ABOUT CANCER, HAS ANY THOUGHT ABOUT WHAT RECOVERY LIMITS SHOULD BE, ANY OF THE KINDS OF THINGS THAT ARE PREJUDICIAL ISSUES.
WHAT WE ARE MORE CONCERNED HERE ABOUT THE LEGAL RULE THAT IS OUT THERE, AND SO WOULD YOU ADDRESS, IN OTHER WORDS, THE OBVIOUSLY EVERYONE IS CONCERNED ABOUT THE OUTCOME OF A PARTICULAR CASE, NOT JUST THAT THE OUTCOME COMES ABOUT. BUT WOULD YOU DISCUSS THE RULING BY THE THIRD DISTRICT, WITH REFERENCE TO THE DUE DILIGENCE, HAVING TO INCLUDE OR APPARENTLY MANDATING THAT THE LAWYERS DO A SEARCH AT THE COURTHOUSE, HERE, AND THAT NOW WE ARE TALKING ABOUT, PERHAPS, SUBSTITUTING, WE GET COMMENTARIES BOTH WAYS, ONE ARTIFICIAL RULE IN PLACE OF THE DIFFERENT ARTIFICIAL RULE, SO, BUT, WOULD YOU ADDRESS THAT PART OF THE THIRD DISTRICT'S RULE SOMETHING.
CERTAINLY, AND IF I MIGHT SAY FIRST, I THINK DELLA ROSA IS CERTAINLY COMPLIED WITH AND IS STILL GOOD LAW, AND I THINK THAT THE DUE DILIGENCE ISSUE IS RECEIVE RABL FROM THE COURT'S OPINION IN -- IS SEVERABLE WITH THE COURT'S OPINION IN THIS CASE. I THINK, WITH THE LACK OF RELEVANCE AND LACK OF CONCEALMENT IN THIS CASE, IT CAN BE CONFIRMED. AS TO THE SUGGESTION THAT WAS MADE BY THE THIRD DISTRICT FOR, PERHAPS, RESOLVING THIS ISSUE, AND I THINK THE THIRD DISTRICT CORRECTLY RECOGNIZED THAT THERE IS SOME GAMES MAN SHIP GOING ON. THE ISSUES, SOME OF THESE OTHER POST TRIAL COMBING THE RECORD KIND OF THINGS HAVE BEEN RESOLVED RECENTLY. FOR INSTANCE CLOSING ARGUMENT. YOU CAN'T GO BACK, AFTER THIS COURT'S RECENT OPINION, YOU CAN'T GO BACK AND COMB THE RECORD AND FOR THE FIRST TIME RAISE CLOSING ARGUMENT ISSUES AS FUNDAMENTAL ERROR BROADLY, BUT SPECIFICALLY YOUR INQUIRY IS TO THE DUE DILIGENCE. THERE IS A COUPLE OF POINTS. FIRST OF ALL, THAT MAY NOT BE WORKABLE IN EVERY CASE OR IN EVERY COURTHOUSE. CERTAINLY IF YOU ARE GOING TO HAVE A ONE-DAY TRIAL, I DON'T KNOW THAT YOU ARE GOING TO WANT TO TAKE A BREAK AND DO THAT, BUT IF YOU HAVE GOT A CASE HERE, THEN THIS IS SUCH A GOOD CASEaL FOR CONSIDERATION HERENi, BECAUSE YOUnr HAVE WHAT WAS A CLEANLY-TRIED CASE, A LONG CASE,w3d8AND CERTAINLY PLENTY OF TIMENi TOnrcninr DO, DURING,w3co BEFORE THE JURY WASe--SWORN INNi,nrNicom/vco WHAT WAS DONE AFTER TRIAL, WHEN SOMEONE WAS THAT ISw3nr ITco BECOMES EASIER ALL THE TIME, ASw3 JUDGESNiNi HAVE COMPUTERSnr ON, SITTIg BENCH, IT IS VERYNi EASYNi TO SIMPLY SOMEONE WITH THATnr NAME WAS INVOLVED IN PRIORco LITIGATION, AND THENNi YOU,Ni PERHAPS, WOULD JUROR INDIVIDUALLYco, SO THAT THAT ISNi BEARING DOWN.
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I AMNi NOT SUQu@Q!AT THATcoco i&o EXACTLY WHAT WAS CONTEMPLATED HEREco, ANDco IN FACT, THAT ISSUE CAN BE SEVERED OUT FROM THE THIRDnr DISTRICT'S OPINION, AND WE WOULDco STILLNiNi HAVE ANNinr AFFIRMANCE HERE.
YOU CAN SEVER THAT OUT BECAUSEco OF THEok OTHERNin2H#INDINGSnKofs6cw3
YOU AGREE THAT THAT COULD BE A PROBLEM.
IT MAY BE WORKABLEco IN SOME CASES. OTHERS.co IT IS CERTAINLYco WITHNi POTENTIAL, AND THIS COURT, I THINK,co MIGHT, AN ELABORATIONok OF WHERE DELLAco THISNicwi C8.n6 CERTAINLY YOU HAVE, INcoco OUR CASEco, CLEAR FINDINGco OF, BY THDoow3e$%L COURT, Afs6cNi SPECIFICpF9DING OF NO CONCEALMENT. YOU HAVE A SPECIFICNi FiL2&NG OF REMOTENESS, AND Wd ULTIMATELY DONicook THE INVESTIGATIONNicoNicoco,Ni DOWNSTREAM, YOUNi FINDNi THAT THERE, THAT THOSE, INNip(U o MATTERSnrNi ARE(cd8CONFIRMED. NOW, THE DUE DILIGENCE --
HOW DO WE KNOW THERE IS NOco CONCEALMENT IN THIS CASE? IS CONCEALMENT, AND I NEED TO UNDERSTAND THIS,Ni ASNi ANnr ANDTATION OF DELLANi ROSA, HOW ISco CONCEALMiQco ESTABLISHED? LET'S PUTNi ASIDE THEco DOMESTIC VIOLENCEcoNi CHARGE.nrNi WE HAVEco GOT LITIGATIONo5 THAT OCCURRED INcoNi THENiNi 1970snr=)i. DO WE KNOW ON THISnr RECORD,nr WHETHERc(aHISNi JUROR FORGOTNicocoNiNiNinr ORNico THATNi SHE SHE DECIDED NOTnr TONi DISCLOSE THAT,wDcoco ISNi THAT RELEVANTNi, WHQHER THE JURORcoNi ANDco SHENi DECIDED NOT TOcoc"DISCLOSEnr IT?Ni
ONNi?;o3 THE RECORD TH8E HAVE HERE, WE HAVEnr NO DEFINITIVENinr$%eZl8ESTABLISHMENT THAT THIS WASNi THENiSAME JUROR.co PROBABLKKT WASNi, SAME INDIVIDUAL. PROBABLY IT WASco, BUT ITnr ISNinr NOT DEFINITIVELYcoNico ESTABLIShW4 COUNTY COURT MATTERS FROMco SEVERAL YEARS AGO, WHERE, ASSUMING ITnr IScoNi MRS. FORNELL ANDNi HERNi HUSBANDNi WERE INVOLVED IN THEco COUNTYNi COURT MATTERS.co WE DONi NOT KNOW, BECAUSENinr HER HUSBAND WAS THEnr FIRST NAMED PARTY,Ni WHETHER SHE WASNiNi EVERcocZiNi AWARE OF FhGSE THINGS.
IS THAT CONCEALMEf< PRONG OF DELLANi ROSA, OMS TBaa REQUIRE TAO THE PERSON KNEW ABOUTNi IT ANcico DIDN'T DISCLOSE IT?nrnrNiORo7Lr ISw3 IT JUST THAT ITnr]KkNRdTEDcoNico AND THE LITIGANTco DIDN'T KNOW ABOUT IT ENOUGH FOR CONCEALMENT? I AM STILL CONFUSED ABOUT THATco PRONG.
nr5r I THINK THENi PRONGSNinr, REALLY,nrNi INTERRELATING TO EACH OTHES,co CERTAINLY THISNi INFORMATIONNi WAS REMOTE,N=cgD WAS FOUND TO BE REMOTE, ANDcoow3 THEREFORENicococo THATNiNiNiw3YmNRONG ISNi ESTABLISHEDco THERE.nr]Kk AS TO CONCEALMENTo[Ni, THERE ARE &+.(p:Qz THAT SAYco THEcMERE FACT THATw3 YOU N'T KNOWco ABOUT IT, IS ENOUGHNi TO SHOW YOU ARE SAYING YOU HAD Acoe7co SO THERExD HAS TO BENi SOME$-/pKNOWING ASPECTNi. IN THIS CASE,AmaN DON'T REALLY KNOW THAT,nr BECAUSE THERE WASKM(-NEVER ANi JURY Int)cVIEWnrcoco OFNi THE --e%OF THAT JUROR.Ni
THAT IScoNi CORRECT.JzDkd8THERE WAS NOo7Oco INTERVIEW.co
ANDcoco THE MATERIALITY. DOES MATERIALITYNi,co CERTAINLY, 20,NiNico 25 YEARScocoNiNi, SINCEco A SIGNIFICANTcoC,3 LAWSUIT, COULD -- MATERIALITY ISNkD#hDVY- WHETHER YOU WOULDok HAVE STRUCK THE JUROR FOR CAUSE, WHETHER YOU WOULD HAVE INQUIRED FURTHER?Ninr WHAT IS THE MATERIALIYicoNi ASPECT?w3m!6HCJ%
nr THE CASESnrw3Ni SUGGEST THAT YOU HAVE TO LOOK AT THESE ONNiNiYm A CASE-BY-CASE BASISNi, AND INiBHINK mTERIALITY IS EXACTLYcoco THE TYPE OF ISSUES THAT YOUR HONOR HASnr JUST BEEN RAISING.Ni OBVIOUSLY IFNiV PARTICIPANTNinr INco A SIMILARcococoASE ANDnr RECOVERED OR HADwMfcoNi TONi PAYNi ANi SEVEN-FIGURE VERDICT'c, EVENnr IF ITNico WASco TEN OR 15 YEARS AGO, THATco CERTAINLY WOULDnr BE SOMETHING YOU WOULD WANT TO KNOW ABOUT.coNi NOW, THE FACT THAT;oR SOMEONE MAY4X HAVE HADNinr Anr TRAFFIC CASEco ORcoNi SOME SMALLco COUNTYNi COURTnr SMALL CLAIMSnrcoN@6HCJ% TITLEcoco CLOUDNiNi TWENTY YEARS AGOco HASNi ABSOLUTELY NOconr RELEVANCENi OR3W MATERIALITY TOco WHAT WE HAVEnrcoNi HERE.NkM 20co CASES OR A NUMBER OFnr CASES OVER THE YEARSco,nr IT CERTAINLY SHOWS SOME FAMILIARITY WITHS7 THE SYSTEM, OF THEnrco LEGAL SYSTEM,co AND BEARS FURTHER INQUIRYcoNi, ANDSIQ!AT IS WHY YOU HAVE TO, THEN, LOOK AT THE FACTS OFNi THESE CASES ONcoco A CASE-BY-CASE BASIS, TO DETERMINE WHETHER OR NOTnr SOMETHING IS MATERIAL,q AND WHEN YOUNi GO THROUGH THE CASES THAT WE HAVWo HAD HERE, IN THE LAS+H- YEARSnr, IN THE BIRCH CASE,nrNi A JURORNinr HAD Aco $1,000coco SMALL CLAIM CASE IN A MEDICAL MALPRACTICEnr ACTION THAT WAS NOT MATERIAL. INNicoco DREWco,co A JUROR, ONE LAWYERnr HAD AGO. MATERIALco, IS THE APPELLATE COURT ARENi THEYNi MAKINGok THAT DECISION,nr ON IScTHAT A TRIAL COURT DETERMINATION?Tr THE TRIAL3WSyca MAKING THESE DECISIONS AND THEN THE APPELLATENi COURT WASfa AFFIRMING.
co DOES THISco CASE NEED TO GO BACKcoco, BECAUSE THE TRIAL COURT, DID THE TRIAL COURT EVERcooh DETERMINATIONnrNi, AS TOco WHETHER THISnr WAS MATERIALcoconrw6OR DID THE TRIALNiok COURT THINK,co ERRONEOUSLY,Ninr THAT,nr IF THERE WAS SOMETHING REVERSEED?
n9QNi TRIALNi COURT MADENi SPECIFICNi STATEMENTS IN THE HEARING ON THE MOTION FOR A NEW TR)a&, THAT THERE WASNiNifa NO MATERIALIALITY TOnrKM(-EITHER OF THESE THINGS, AND IN FACTNiYO ALSOcom/v,Ni SUGGESTED THAT THERE MIGHTNi HAVENiNi -- WELL, LET ME STOPco AND SAY THIS, THDHEco TRIAL COURT, ALSONi, SAIDnr THE REASONco THE TRIAL a IS THEnr TRIAL COURT SAID THERENi WAS A QUESTION AS TO WHETHER THERE HAD BEENco ANYNiNiNi LITIGATION EXPERIENCE.Ni HAVE YOU BEEN IN LI(Ae8URJn BEFORE.C( AND THOUGHT THATNi, UNDERco THE CASE LAW,Ni AS IT THENok EXISTEDnr,nMQ!AT THAT WAS Anr SUFFICIENT INQUIRY TO ESTABLISH DUE DILIGENCE. THE RECENTco CASES THAT HAVE COME OUT, IN THE LASTN THESE TENco ORKOkIN 11ASES, HAVE SAID=o[ VERYNi CLEARLYNi, THAT ASKINGnrNi4URORS HAVE YOUco ANYNIi LITgION EXPERIENCE, A LAY PERSON WHO Iwonr NOT PART OF THE BENH OR BAR, PROBABLY DOEScoNiNi NOTco UNDERSTAND THATnr, BECAUSE IN ONE OF THE DECISIONS THAQi WAS CITED,Ni LITIGATION. OTHER PEOPLE HAVE SAIDco THEYt( DON'T UNDERSTAdm THATNi SMALLnr CLAIMS ARE PARTNqr OF LITRgpaION.N4 I SUENi VEONE OR I AM SUED FOR DAMAGES, AND INico AMco INNi COURT.Ni THEY DO NOT SEEM TO RANi6ENinrNinrNi THAT WILL DISPUTES OR CUSTODYcoco BATTLESNi OR UNCOeeQ:UQb DIVORCESnrco OR ANYnr[5 PROFESSIONnr,nr RECOGNIZE AS LITIGATION, ARE,NiNi IN FACT, LITIGATION.; PERHAPS THE WAY"azco RESOLVE THIS IS TONIi HAVENiNi A MOREnwinrNi CLEARnr INSTRUCTIONw3 TOo[w3Ym?;oi THE]IN#zaRY, BY THE COURT, EXPLAININGcoco THENico BERADTHNi OFC A BROAD, V Z SPECIFIC STATEMENT HAVE YOU EVERn;BEEN INVOLVED INcoco ANY KIND OF CLAIMS?Ni ANY DIVORCE ACTIONS?co HE WENT THROUGHnr A LITANY ofNici BING TS%iNiNi OUTLINE. LIST OF THINGS THATo7O HE MADEco INQUIRY OFNi, SO I MEAN,Ni IN FAIRNESS HERE, ITnrNWaTnN AS THNWGH THE LAWYER, DID HE NOTNi,nr TRY TOco ELUCIDATE THAT CONCEPT?coco
THE QUESTION HERE ISnrNinr IT WASNi
Ap MONPtWnVo
ITNiNi CITED INNi THE TEJADANiNi OPINION,c
THE QUESTION FROM THE COURT IS
HAVE= YOU BROUGHT ANi C
AGAINST SOMEONE ELSE, SEEKING
MONEYcoN%uaji THEM,Ni ORco=
BROUGHT AN ACTION AGAINST YOU,
SEEKJnw3co MONEY FROM YOU,nr ANE"IT
COULD BE BECAUSEcoNi OF AUTO
ACCIDENT, BREACHNNiNicoco OF CONTRACT,
MANY OTHERnr THINGS,co DIVORCES AND
WHATNOT.' WITHw3 REGARD TOn"i WHAT THE COURTnrS7
SAID,nrnr COUNSEL DIDN'T SAYNi MONEY
DAMAGES, DID HE?nr
COUNSEL SAiWHERE YOU HAVENi
BEEN A PARTY TO @oco LAWSUIT, ANDNi
THENnr WEf< ON TO GIVEco HIS
DEFINITIONnr08aeU:uRa.
THE DUENinrw3 DILIGENCEap&=9G ISco A
CLOSED QUESTION.
THERE IS NOco QUESTION ABOUT THAT
AND I SEE THATNi I HIM OUTnr OF
TIME.
INcook THIS PARTICULAR CASE,w3 THEnr
TRIAL JUDGE MADEcoco SPECIFIC
FINDINGSNi ON TWO OF THE pSN OFNi
DELLAcmK ROSA, ANDfa THOG)rcoNicoNiNiw3nr ARE
APPROPRIATE FOR AFFIRMANCEcoNi OF
THEnr JUDGMENT INnr THIS CASE, TOok
THEco EXTENT THE THIRD DISTRICT
TRIED TO FASHION ANi REMEDYnNiNi TO THENi
OR ELABORATE ONco DELLAnr ROSA, ON
THE DUEco DILIGENCE PRONG, SO THAT
WE DO NOT CONTINUE TO HAVEco THIS
FLOOD OF NEW CASES,[N WHERE PEOPLE
AREN@BOMINGnr BACKok]Kk iw3 POSTnrSaARWNi
THIS COURTku8RgLY IS NOT
BOUND TONi A=aGN THAT.nrNiNi
THISNi CASE CANNi BEnr AFFIRMED,co EVENnrco
mJEna
DISTRICT'SNi POTENTIAL REMEDY.
THANK YOU,co COUNSEL.
THANK YOU VERYNi MUCH.N-WKjK
MR.nrw3Ni KLEINBERG.
I AMeaJn
TIME TO ADDRESS EVERYTHING THATcoNi
It(U7G)-NNinr
LET ME ASK YOUNi THIS REAL
qU5jNN
nr OKAY.
DO YOU AGREE THATNi THEN!o )yJjX 6HCJ%
JUDGEnr SAID THATco THT, THISNi
INFORMATION WAS NOTNi RELEVANT ANDw/Q
FINDING, JUST TO THE OPQMSITE OF
THAT?
YOU COULD NOT BE MORE
CORRECT.N
I DISAGREENiQp)TEDLY.
THE DEFEedCNTS IN THIS CASE, THEco
RESPONDENTS INNi THIS CASE ATTEMPT
TO THPo OUT BUZZWORDS TAKEN OUTNi
THE WORDcow3 "REMOTENESS".
YOUw3co ARE RIGHT HE DID.Ni
BEING A GOOD JUDGE, HE STOPPED
AND THOUGHTco ABOUT I, AND HEnr
CONSIDERED REMOTENESSNi, ANDco HE
SAIDco THIS IS REMOTEco, BUTnr YOU
KNOW WHAT?Ni
IN MY REPLY BRIEF, Ico
SPECIFICALLY INCLUDED THOSE
PORTIONS OF THEco EXCERPT WHICHcP6HCJ%
WERENico MISQUOTEDco ANDNi WHICH WEREcoNi3W
OMITTEDaBXookcoNi THENi DEFENDANT,coco
BECAUSE WHAT THE COURT SAIDcocoNi3W WAS
IT DOESNi SEEM TONinrnr BENiNi
TWENTY YEARS REMOTE.
", BUT IT DOESN'T SEEM TO MATTER
BECAUSE IT COULD HAVEnrcofa LED TO A
LEGITIMATE INQUIRY BYnrNi
PLAINTIFF'S COUNSEL, DURINGco THE
VOIR DIRE, AND IT COULD HAVE LED
TO RELEVANT INFORMATIONNi ABJa
THEc!RU'uJ Ni AND ISN'T THAT WHAT
DELLA ROSANi SAID WOi WERE SUPPOSEDa(A8TO DONi, AND ISN'T THAT WHAT
JUSTICE Kn$TEAD SAID, INNi THENi
O.Ie CASENi ANDnr SUPPORT)J/co JUDGE
HATCHET IN THE ROGERS CASE?
ISN'T THAT WHAT WE ARE SUPPOSED
TO DO?
Ninr SHOULDN'T WE,nr ALSO SHE HAS
ARGUED THAT WEnr
THESE ARENiNiNiok THE JURORS THAT WEREco
mZTHATNi THESE JURORS ARE THE
PERSONS WHO ARE NAMED IN THAT.NiTJek WE NEED TO GEti MORE
INFORMATNco AND DETERMINE IF
THESENi ARE THE SPECIFIjk JURORS?nr
NO, YOU DON'T.
IT IS ANico PREi'&TEROUSNi CONTENTION.nr
WE WENT THROUGHNi TEN MONTHS OF
PULLING RECORDSco ANDNiNzTHEN GOING
ANDnrNiNi DOINGo7O INVESTIGATIVEnr
BACKGROUNDS, AND WEw3co CLEARLY
ESTABLISHEDNi THIS WASok THELGaN FORE
NECESSARILY.
SHENi WORKSco --NiNinrco FORNELL.
SHE WORKS @V THE COCONUT GROVE?BANK INNi CL
AND]J
FORNELL.
WE GOTNicoNi HER SWORNpP
DOMESTIC ABUSE CASE.
THERE ISnr NOco DOUceW4Zl8ANDNi THE JUDGENi MADEnr SPECIFICFINDINGS OF FACT AND MR. McCOY,
THE TRIAL COUNSEL, CONCEDEDNico THAT
YEAH, THIS LOOKSNi LIKE THENi RIGHTco
PEOPLE.
WE WENT THROUGHNi GREAT LENGTHS,
THEY WERE.nr
Wd
NATURE OF THE AUTOMOBILE
ACCIDENT THAT WASN-tNNi DISCLOSED?
WHAT WE KNOWNi ABOUT IT IS --co
Ni WAS IT Anr SMALL CLAIGs/
)snnr WENinr KNOW NOTHING.
SHE NEVER TOLDNizUJN
HOW DO I KNOW?Ni
THAT IS THEnnPOINT.
HOW DO INi KNOW WHAT SHE --
WHY SHOULDNwTiokNi THAT JUROR HAVE
BEEN INTERVIEWED, THENNi, BEFOREco
THE JUDGEcyo MAKESNi A DECISIONco TO
GIVEhYGU Aco NEWNi TRIAL?ok
TWONi THINGS.nr
ONE, JUSTICE OVERTONnr SAYING THAT
JUSTICEcoco ANSTEAD'Scook OPINIONnr INnr
DELLA ROWSco A ITco WASN'T REQUIRED
UNDER EXISTXi LAW.
TWOcoPoc I ASKED FOR ANcwi INTERVIEW AT
EVERY STAGENiw
IM CERTAINLY ENTITLED TO GO
POSTURE.
WHAT ARE YOU GOING TO SAY IT
LCTTERED?m'pDID YOUNi GOcoNi BACK ANDnrNIi REDONi THE CARco
ACCIDEetNi AND DIDnr ITco MATTER?Ni
I OBJECT TONi GETTING PAID.
YOU WERE INTERVIEWING AcMo
PLAINTIFF.nr
IFNi3W SHE WAS A PLAINTIFF AND SHE
HADNi A REAR END COLLISION AND
COI
GOODNi FAITH --ncoNicoN$(aT(UQb --
COLLECTED $A 00, YLeco CAN'Tco IN
GOOD FAITHnr --Ni COLLECTEDw3 $500,
YOU CAN'T IN GOOD FAITH TELL ME
THATcon'i SHE COULDN)w: HAVE BEEN STRUCK
PREEMPTORILY.
Nico MAYBE SHENiNiok GOTconrco $500 AND MAYBE
SHEnr= THOUGHTNiNiNi SHE DESERVED $500Ni
MILLION.
MAYBENi SHE WASN'T HAPPY WITHNi THATco
AND NOWco SHE IS GOING TOnr STICKNi IT
TO THEnr DEFENDANT,coNi AND HEREW
ARE IN TALLAHASSEE, FLORIDANico, TENnr
YEARS LATER AND WE AREw3 IN
TALLAHASSEE FLORIDA, AOFNi ALL SHE
HAD TOnrOKNcoNHO WAS TELL MEnr.
nr HOW COULD ITco BE THAT]Qc0@6HCJ%
DIDN'T REMEMBER?w3
AGAIN, IT IS EASY FOR HER TO
COME KMnr BEcoNinrNi --co TONi COME IN AND SAY
I DSfg'T REMEMBER.
IT IS ANico SELF-SERVINGnr STATEMENT.
FIRST OF ALL!co DON'Tn GET HUNG UP
ON WHAT THE[o JUDGE'S TERMS WERE.
HE Vb IT WAc"i ASKED FORNi AND ITNi
SHOUIHAVE BEEN RESPONDED TO.Ni
SECONDLY, SHE WASw3 SERVEDcoM.
PERSONAL SERVICE.nrd8SHE ANSWEREDNiNi INTRIOGATORIESNi.
SHEconr SATco FORNiNV DEPOSITION.co
SHENico SIGNmDznrnr SETTLEMENTNi PAPERS.
SHENVD.O[jr
NOT HER HUSBAND.Ni
ITNi IS IN THE RECO&A9co
WEnr PRODUCED THA
THE COURT.
THATco ISNi WHY IT TOOKw3 TENnrco MONTHS.
HEY, GOTCHA,cocoNi3WnrNi FREEBIEco, NEW TRIAL.
WE WORKEDNi AT THIS, TOok MAKEnr SURE
WE DIDou THE RIGHT WAY.
THE JUDGE MADE THE[nY REQUISITE
FINDINGS.53
HE SAID, LOOK, ITco SHOULD HAVEco
ELICITED A RESPONSE.
THE MANok SHOULD HAVE BEEN ABLE TO
ASK, QUOTEw3,co IT WAS FAIR GAME FOROTH OFc"THE LAWYERSnr TO ce
AND JUST BECAUSE ANi PERSON ISw3 A
PLAINTIFFco, IT DOESN'T MEAN THEnrcoN)0@6HCJ%
PERSON WILL SIDE WITHNi THE
PLAINTIFF, AND JUST BECAUSE ANi
PERSON I ANN'i DEFENDANT DOESN'T
MEAN THEY WILL SIDE WITH THE
DEFENDANT.
I SEE MY TIME IS UP AND I THANK
THE COURT FOR THEIR TIME TODAY.w3
I RESPECTFULLY." ASK THAT THENi
TRISl JUDGE'S ORDERNi BE AFFIRMED
ANDN) THAT THE THIRD DISTRICT BEnrnr
REVERSEDNi, ANDco I APPROcTE THE
TIME THAT YOU HAVE GIVEN ME
TOD=W
THANK YOU.
THANK BOTHN.' mUNSEL FORNi THEIR
ASSISWq