Appropriate-Shoe-Motion Case Ends in Mistrial After Jurors Read About Motion

LTB default 777x437

A couple of weeks ago, I wrote about a case in Florida in which the plaintiff's attorney had filed a motion to compel defense counsel to wear appropriate shoes.  Bill Bone argued in the motion that it was "well known in the legal community" that Michael Robb wears shoes with holes in the soles during trial, which Bone believes to be a "ruse" to gain sympathy with juries.  That motion was denied, and the case proceeded.

Turned out, though, that it had proceeded only until the jurors found out about the unusual motion, which they did on June 29 by reading a column about it in the Palm Beach Post.  See Frank Cerabino, "Does lawyer who bares sole have an ace in the hole?" (June 27, 2009).  One of the jurors came across the column, read it all (in violation of the judge's instructions not to read any outside information about the case), and then brought the paper to court so all the other jurors could violate the judge's instructions too.

When this came to light, the judge talked to the jurors about it, and they denied that it had influenced them in any way.  But because the jurors had not followed instructions, he felt compelled to declare a mistrial.

For a reason that was not clear from the report, however, the judge did not tell the jurors about the mistrial and allowed them to deliberate and reach an "advisory verdict."  The rules do allow advisory verdicts in some situations, but since a mistrial had already been declared here, I don't know what this jury would have been advising about.  The only clear effect of the advisory verdict, therefore, was to make the plaintiff and his lawyer feel even worse, because the jury "awarded" them $2.2 million that they were now unable to collect.  The plaintiff's lawyer said he and his client had both "cried real tears" after the mistrial, and that's not at all hard to believe.  Losing a shot at $2.2 million would cause real tears to shoot out of my eyes, too.

It also was not entirely clear which side asked for the mistrial, which as noted was declared prior to any verdict in the case.  A followup by Frank Cerabino, the columnist who wrote the June 27 story, suggested that defendant's counsel had moved for it, saying the story had harmed the defense; although as Cerabino noted, defendant's counsel had been more than happy to answer questions for the column in the first place.

Ironically, the end result of all this is that Robb's beat-up old shoes have worked their (alleged) magic again by indirectly allowing his client to escape a $2.2 million verdict.  Maybe they won't be retired after all.

Link: Palm Beach Post