Florida Appellate Decision Recognizes Importance of Accident Victim’s Right to Seek Counsel

1403571_stop_sign.jpgThe recent appellate decision in Howard v. Palmer illustrates that the courts recognize the importance of being able to hire an experienced, savvy personal injury attorney right away. In that case, an employee of Groupware ran a stop sign and crashed into the plaintiff’s car. The plaintiff sued for personal injuries in a negligence and vicarious liability lawsuit against both employee and employer.

Before trial, the plaintiff’s attorney made a motion to prevent the defense attorney from presenting evidence that on the day of the accident, the plaintiff contacted an attorney who referred him to a doctor. The plaintiff’s attorney believed that the defense attorney would ask all of the plaintiff’s doctors if they knew he had met with an attorney. The defense confirmed that this was its plan, claiming that plaintiff contacting an attorney the day of the accident created an issue as to whether he actually experienced a permanent injury or if it was a manufactured permanent injury.

The trial court ruled for the plaintiff and prohibited the defense attorney from asking questions about when plaintiff contacted an attorney. Nonetheless, when questioning the plaintiff’s treating physicians, the defense attorney asked one of the doctors if he knew that the plaintiff had seen an attorney before going to the first treating doctor. In a sidebar before the court, the attorneys disagreed about what the court’s ruling had been, and the plaintiff’s counsel brought up the case law he had brought up during the motion. That case law concerned a similar issue in which the court ruled inadmissible any evidence of a plaintiff seeing an attorney three days after an accident.

The trial court in the instant case agreed with the plaintiff and said it would give the jury a curative instruction. The plaintiff’s counsel next asked for a mistrial to sanction defense counsel for violating the court’s order.


The court took the motion under advisement and gave a curative instruction. The jury’s verdict was for the plaintiff, but in an amount lower than requested. The plaintiff moved for a new trial, arguing that the defense counsel’s violation of the order coupled with his other statements prejudiced the jury. The trial court denied the motion.

The plaintiff appealed, arguing that the court’s ruling was a reversible error. The appellate court considered whether the defense counsel’s statements were so prejudicial they warranted a new trial. It reviewed the record, which showed that it was unlikely the defense attorney misunderstood the trial court’s order granting the motion to keep out evidence about when the plaintiff consulted an attorney.

Defense counsel had made other inappropriate statements. For example, the defense counsel called photographs “lawsuit photographs” and referenced that Groupware was a subcontractor for Comcast, implying the reason for the suit was deep pockets. Although the plaintiff’s attorney objected, he did not move for a mistrial after the judge sustained his objections. This meant the statements could not be the basis for the appellate court overturning the lower court, but they could be considered in connection with the main issue being appealed.

The appellate court looked at the cumulative effect, plus the likelihood that the defense attorney’s violation was intentional. It ordered a new trial.

If you have been seriously hurt in a car accident, call the hardworking South Florida car accident attorneys at Friedman, Rodman & Frank to speak to an experienced attorney about your case at (877) 448-8585.

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