Sunday, July 5, 2009

Third DCA Reverses Grant of New Trial

In Community Asphalt Corp. v. Bassols (3D07-1317), the Third DCA reversed the trial court's grant of a new trial "because the comments defense counsel made during closing argument were insufficient to warrant a new trial."

A party is allowed to comment on the lack of evidence supporting the opposing party’s position. It was permissible for the defense to point out that Bassols had not produced a contract with Red Bull. Defense counsel next said: "[y]ou should expect perhaps one of his coaches to come in here. You should expect someone to come in and talk about his true opportunities to make the Olympics, not just Mr. Bassols’ word for it or his sister’s word for it". While Bassols maintains that the argument violates Haliburton and Lowder, Bassols did not object. Defense counsel thereafter repeated a similar argument. Bassols did not object.

In our view, the comments were neither highly prejudicial nor inflammatory so as to rise to the level of a mistrial.


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