In Metropolitan Dade County v. Zapata, 601 So. 2d 239 (Fla. 3d DCA 1992), the Third District considered a heart-wrenching case involving a child who drowned at Crandon Beach Park. The case gave the court the occasion to discuss the law concerning the improper “golden rule” argument.

In Zapata, the jury returned a verdict in favor of the drowned boy’s estate. Because of an improper golden rule argument made by his lawyer, the appellate court reversed and remanded for a new trial.

The appellate court described the facts:

On May 17, 1987, decedent, his cousin Julio Perez, and their friend Bacchur Issa, went to Crandon Beach Park, which was attended by four lifeguards. The three boys walked in shallow water out to a sandbar approximately seventy-five yards off shore. Upon commencing their return to shore, they stepped into a drop off between six and eight feet deep, where, within minutes, Mario Zapata drowned. Decedent’s representative brought the present action claiming that no lifeguard came to decedent’s rescue until it was too late and further that, although known by the County to be a dangerous area, no signs were posted warning of the drop off.

Decedent’s companion Julio Perez testified that decedent was a weak swimmer and that when he started drowning a struggle had ensued as Perez and Issa attempted to rescue him. Perez further testified that although he and Issa called for help and splashed for approximately two minutes, no lifeguard responded. The testimony of all four lifeguards on duty at the time was that all were attentive on the day of the drowning, and that none had noticed any signs of distress requiring immediate action. The County argued that because there were no obvious signs of distress, the death must have been the result of a sudden or silent drowning, and thus no breach of duty owed by the County to the swimmers occurred.

The County claimed the trial court had erred in: (1) allowing a “golden rule” closing argument; (2) precluding argument or comment regarding assumption of the risk; and (3) commenting on the evidence. Further, the County asserted that the trial court had erroneously admitted into evidence: (1) the results of a failed mock drowning drill; (2) a lifeguard training film; and (3) a photograph depicting what a lifeguard’s perception of a drowning person would have been from the lifeguard tower located closest to where decedent was found. Finding that the golden rule argument was improperly permitted, the Third District reversed and remanded for retrial.

The Third District began its discussion by describing the “golden rule argument”:

First, a golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence. Simmonds v. Lowery, 563 So.2d 183, 184 (Fla. 4th DCA 1990); Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989); Schreidell v. Shoter, 500 So.2d 228, 233 (Fla. 3d DCA 1986), review denied, 511 So.2d 299 (Fla. 1987). Such an argument is improper and constitutes reversible error. Schreidell, 500 So.2d at 233. However, to be impermissible the argument must strike at the sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation. Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).

In Zapata, both plaintiffs and defendant had divided their closing statements between the issues of liability and damages. Moreover, in both plaintiffs’ and defendant’s closing, one attorney had discussed liability, while a different attorney had discussed damages. During plaintiffs’ rebuttal, the attorney who had discussed liability stated:

… . Influential family. It’s an optometrist. And he has to talk about damages. He doesn’t have to talk about damages. Oh, they are all so sure about their defense in this case, they won’t talk about damages. The best thing to do is get up and say, ladies and gentlemen, you know better.

This didn’t happen the way the Plaintiff says, I’m not even going to talk about damages.

THE CLERK: Time.

[Plaintiff’s Attorney]: Walk in their shoes.

(Emphasis added).

Because the comment was made by the attorney who had previously discussed liability, plaintiff argued on appeal that the attorney was not asking the jury members to put themselves in the shoes of decedent’s parents for purposes of assessing damages. However, when looked at in the context of the lines quoted above, the Third District found that the comment was sufficiently prejudicial to constitute harmful error warranting a new trial.

A plaintiff’s lawyer making a closing argument cannot ask the jury to “walk in their shoes.” It’s interesting–and not discussed in the opinion–how the illegal comment came after the clerk had notified the arguing lawyer that his time had run out. While the lawyer might have blurted out the offending comment in a moment of panic because his time had run out (this is speculation on my part), nevertheless, you just can’t say that.