Lawyer’s Trial Tactics Backfire

In matrimonial cases, perhaps more than in other civil litigation, certain clients want lawyers who are prepared to dish the dirt, whether it’s helpful or relevant to their case, or not.

I have always maintained the view that if you having a winning case you don’t need to slip into the gutter, and if you don’t have a winning case, then you shouldn’t be in court. Now, of course, no lawyer can predict with certainty the outcome of every case, but when clients pay for years of experience, they expect a reasoned analysis of their chances of success, not crystal-ball gazing or pouring through astrological charts.

Recently, a lawyer in Florida went way over the line when he represented an injured motorcyclist at a trial for compensation. The driver of the vehicle, Mr. Chin, who was involved in the accident, had admitted he was responsible for the crash. The victim, Mr. Caiaffa injured his right knee, right wrist, right ankle and right testicle.

Lawyer Ronald Simon won an award of $1.4 million for Mr. Caiaffa after a jury trial. Regrettably for Mr. Caiaffa, Simon’s overzealous submissions resulted in the Florida Court of Appeal setting aside the jury verdict and ordering a new trial for Mr. Caiaffa.

So, what did lawyer Ronald Simon say that was such an affront to the Court of Appeal? Where do we begin?

In his opening statement, Simon passionately implored the jury to be generous to his client because “he was going to live for over 50 years with half his manhood and with pain from that.” The trouble was that Mr. Caiaffa had not lost a testicle and medical testimony confirmed that the injury had completely healed, leaving Mr. Caiaffa with no loss of function or pain.

Further in his opening statement, Mr. Simon disparagingly referred to Mr. Chin as being arrogant and uncaring because Mr. Caiaffa was $80,000.00 in debt from medical bills. Simon ran into three problems with this submission. Firstly, there are strict rules in Florida preventing an attorney from disclosing a victim’s wealth or poverty; secondly, the statement was untrue as Mr. Caiaffa had full insurance coverage; and finally, a lawyer cannot legally or ethically make statements in an opening that are not supported by the evidence he intends to rely on.

During the trial Mr. Simon attacked the character of the main medical expert in a way that was inappropriate and followed his tirade with inflammatory arguments in his closing statement. Notably, Mr. Simon, in reference to the medical evidence said “You make a mistake when you call in witnesses who don’t tell the truth…Anything to win and anything to save the day…They’re trying to fool you.”

He also said “By (Chin’s) negligence, you have a blank cheque…This is a lawyer-driven lawsuit.” Simon also used a Power Point presentation in his closing argument that contained a large blank page with the following written on it: “Lawyer-Driven Lawsuit.”

This is not the first time that Ronald Simon’s dubious trial tactics have backfired on his client. In the opening line of the Court of Appeal’s Reasons they referred to another case tried by Simon where his intemperate, pejorative submissions were the cause of a reversal of the trial decision. To anyone but a lawyer, a trial is extremely emotional and financially devastating. If Mr. Simon ran these trials on a contingency basis, he may well have also hurt his own financial interests, all because of exaggeration and overstatement.

Lawdiva aka Georgialee Lang

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