Indiana Injury Lawyer Blog

The Supreme Court of Nevada in the case of Lioce v. Cohen et al., 149 P3d 916 (Nevada 2006) held that the defense attorney's arguments based upon jury nullification, personal opinion regarding the justness of a plaintiff's case and invoking the golden rule argument amounted to attorney misconduct.

In four different personal injury trials in Nevada, a defense attorney made similar arguments during the trial. These arguments included an attempt at "jury nullification" [the Nevada Supreme Court defined jury nullification as "[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness." Black's Law Dictionary 875 (8th ed. 2004). Examples include arguments that these cases wasted taxpayers' money and jurors' time. The defense attorney also argued that the cases were examples of people "looking for an excuse to sue someone at the drop of a hat" and that society now believed that "Americans have become a society of blamers."

The Court also found that the defense attorney impermissibly injected his personal opinion about the justness of plaintiffs' causes when he said that he had "a real passion for [these] case[s] and cases like [them]," because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what the defense attorney argued was the public's negative perception of the legal system.

Finally, the Court ruled that the defense attorney's closing argument, which contained a statement to the jurors, "You send your son or daughter" to a friend's house, where he or she was injured, and questioned, "[D]oes that mean you just go out and sue[?]" (Emphasis added.) invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the plaintiff's daughter's injuries. The Court found that this question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence.

This case underscores the obligation of defense attorneys to defend cases based only on the evidence and the law. The problem with defending against such unscrupulous tactics is the requirement of making timely objections to such argument. Most trial lawyer do not wish to make objections during the trial. This problem is actuated when the offending attorney makes repeated objectionable comments after an objection has been sustained. In cases where the comments rise to the level of "plain error" the Nevada Supreme Court created an exception of the need to object.

One method to deal with this type of conduct is to address it within the context of a motion in liminie prior to trial. In that way it is possible for the trial counsel and the court to be reminded of the rules before the "heat of battle".

Despite the Indiana Supreme Court's recent decision in Glotzbach v. Froman, 854 N.E.2d 337 (Ind.2006), in which the Court held that there is no third party cause of action for spoliation against an employer of the injured party, Indiana still recognizes the cause of action of third party spoliation cases. The right of an injured party to bring claim for third party spoliation was first recognized by the Indiana Court of Appeals in Thompson v. Owensby, 704 N.E.2d 134 (Ind.1998) trans. denied. The Thompson case is particularly important to me because I was the attorney who argued before the Indiana Court of Appeals and then the Indiana Supreme Court that Indiana Insurance Company, whose adjuster lost the dog leash which was the subject of a product claim, should be liable for Nicole's inability to prove her product claim against the manufacturer.

In Thompson, Nicole was severely bitten by a neighbor's dog as she rode her bike down her street. The dog had a history of being vicious. That is the reason that his owners had leashed him inside a fenced yard. The dog broke the leash, ran out of the fenced yard, onto the street and attacked Nicole. Indiana Insurance Company, the insurer for the dog owners, took control of the defective leash when it learned of Nicole's claim. During the course of the investigation, it lost the leash. We added the insurance company to the tort action against the property owners and claimed that to the extent Nicole was unable to prove her case of a defective product against the manufacturer due to the fact that the product was no longer available, then the insurance company should be responsible for what Nicole's case would have brought had the absent leash were present.

The Indiana Court of Appeals found that there was a special duty on the part of the insurance company to preserve evidence. To do so, the court found that there was a special relationship between the claimant and the insurance company, that the harm involved in loss of evidence was foreseeable and that the recognition of duty is consistent with Indiana's policy of accountability. The court wrote "[liability insurance carriers are no strangers to litigation, and it strains credulity to posit in a motion to dismiss that a liability carrier could be unaware of the potential importance of physical evidence.."

The Indiana Supreme Court, has a 2-2 tie vote on whether to accept transfer on Thompson. As a result, Thompson became the law in Indiana.

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