For years the District Courts of our State have had different opinions as to whether or not improper comments in final argument to which there was no contemporaneous objection could constitute the basis of a new trial. These disagreements are exemplified by the Third District’s decision in Borden v Young, 479 So.2d 850 (Fla. 3rd DCA 1985, rev. denied 488 So.2d 832 (Fla. 1986) and Murphy v International Robotics Systems, Inc., 710 So.2d 587 (Fla. 4th DCA 1998). The Third District joined with the First and Fifth Districts and adopted a policy that the best way to curb improper argument was to allow appellate review of such argument even when objections were not timely raised. The Fourth District, on the other hand, in the words of Judge Klein in Murphy “all but closed the door” on appellate review in civil cases to unobjected to comments in final argument.
Those conflicting District Court opinions were recently resolved in Murphy v International Robotic Systems, Inc, 25 F.L.W. S610A (Fla. August 17, 2000). That case was essentially a contract dispute regarding the manufacturing of an underwater vehicle called an OWL. During final argument, the defense attorney repeatedly used the term “BS detector” stating that if the jury found for the plaintiff on one of the claims that the jury would be “accessories after the fact, to tax fraud” and accused the plaintiffs of attempting to cash in on “a lottery ticket.” After a verdict for the defendants the trial court refused to grant a new trial based upon these comments and others to which no objection had been timely raised and the Fourth District affirmed. Based upon the conflict between that case and the decisions of the First and Third Districts, the Supreme Court took jurisdiction and established a new rule with respect to appellate review of unobjected to improper statements in final argument.
In a long and scholarly opinion authored by Justice Lewis, the Court established a four prong test for appellate review of unobjected to final argument. The Court concluded that in order for a trial court to grant a new trial on the basis of improper statements in final argument to which no timely objection had been raised, the party challenging the argument must show that it was improper, harmful, incurable and so damaged the fairness of the trial that the public’s interest in our system of justice required a new trial.
On the first test, that the challenged argument must be improper, the Court reflects on what is and is not improper: