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Holey Footwear Delays Resolution of Florida Case

By Brian A. Zemil, Litigation News Associate Editor – September 23, 2009

A Florida trial court recently declared a mistrial after a nine-day auto tort trial because jurors discussed a newspaper story reporting that the plaintiff had moved to require the defense attorney to change his holey shoes.

Although denying that the story would influence their decision, the jurors violated the court’s instruction not to discuss the case prior to deliberations or consider any information about the case outside the courtroom. The judge, however, did not tell the jurors about the mistrial until they had deliberated and rendered an “advisory verdict.”

The nonbinding verdict awarded the plaintiff the entire amount that he requested in damages: $2.2 million. “This is an unfortunate example of what can happen when you wash dirty laundry in public,” says Andrew S. Pollis, Cleveland, OH, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee.

The “Motion to Compel Defense Counsel to Wear Appropriate Shoes” asserted that defense counsel deliberately wore the holey shoes as a “ruse” to appear “humble and simple,” thereby gaining an unfair advantage and swaying jurors to believe that the defendant deserved to win. The judge denied the motion.

“Lawyers have been trying for years to appear ‘homey’ in an attempt to influence jurors,” says John B. Isbister, Baltimore, MD, former cochair of the Section’s Products Liability Committee and current Section Publication and Content Officer.

“What matters is that the attorney’s presentation is genuine. Otherwise, the jury will likely see through it,” Isbister says.

The Palm Beach Post published the story after a local reporter received the motion from an out-of-state, “casual acquaintance, non-lawyer,” who also had received the motion by email.

“This illustrates that in our new media age, people share information through various outlets and lawyers should know that there is an increased likelihood that any public statements could reach a juror,” says Mark J. Fucile, Portland, OR, member of the Section’s Ethics and Professionalism Committee and the ABA Center for Professional Responsibility.

According to the reporter breaking the story, the defense attorney initially provided “great quotable lines” but later retracted them and requested, along with the plaintiff’s counsel, that the reporter not report the story to prevent a potential mistrial. The newspaper nonetheless published the story.

Fucile recommends that, “if you are considering whether to speak to the media, you should first consult your rules of professional conduct that prevent comment if there is a substantial likelihood it will prejudice the adjudicative process.”

“This is a classic case when the motion is better left unfiled and discretion is the better part of valor because you may end up, like here, shooting yourself in the foot, no pun intended,” says Fucile.

“If counsel absolutely believed it was crucial to raise the issue, he should have filed a motion only as a last resort,” says Pollis.

“He first should have approached opposing counsel, and if that was unsuccessful, he should have discussed it with the judge off the record, but in the presence of opposing counsel, of course. And if it was really necessary to file a motion, he should have filed it under seal,” Polis advises.

This was the second mistrial in the case and the advisory verdict “gives everyone a look at how the case could be decided and whether they need to do it again or do something else,” notes Isbister.

Keywords: Mistrial, jury deliberations

Related Resources
  • » The permitted use of an advisory verdict is apparently based, at least in part, on Federal Rule of Civil Procedure 39.
  • » Although not cited in the motion, the District Court of Appeal of Florida for the Fourth District held that a trial court has the power to require lawyers to wear ties and issue orders “pertaining to decorum” of lawyers appearing in court to promote the orderly administration of justice in Sandstrom v. Florida, 309 So.2d 17 (Fla. 1975). Appropriate attire, such as a coat and necktie, has “always been considered a contribution to the seriousness and solemnity of the occasion and the proceedings. It is a sign of respect.” Sandstrom, 309 So.2d at 23. See also "Suit Yourselves, Young Lawyers" [PDF], The Young Lawyer 5.9 (American Bar Association) June 2001, at 2 (explaining that conservative dress is key when appearing in court and your shoes “should be shined and in good repair”).


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