Golden Rule, The

During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant’s attorney needs to immediately object and move for a mistrial since this would be considered a violation of the “Golden Rule”. If an argument strikes at that sensitive area of financial responsibility and requests the jury to consider how much they would like to receive under similar circumstances, then the argument violates the “Golden Rule”. Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). Trial attorneys may not ask the jury to measure the plaintiff’s pain and suffering by putting themselves in plaintiff’s shoes. Schreidell v. Shoter, 500 So.2d 228 (Fla. 3d DCA 1986), rev. denied, 511 So.2d 299 (Fla. 1987). The jury should not be asked to mentally go through the same pain and suffering that the plaintiff went through in deciding what damages should be awarded. National Car Rental Systems, Inc. v. Bostic, 423 So.2d 915, 917 (Fla. 3d DCA 1983); State Farm Mutual Automobile Ins. Co. v. Curry, 608 So.2d 587 (Fla. 4th DCA 1992). On the other hand, it is permissible to ask the jury to consider what damages the plaintiff has suffered. It is also proper to ask the jury to place themselves in the position of compensating the plaintiff for the injuries the plaintiff sustained. Simmonds v. Lowery, 563 So.2d 183 (Fla. 4th DCA 1990). In that case, the plaintiff’s attorney, during closing argument requested that the jury “think about what you would pay someone for one day of what you would hear she [plaintiff] has to go through and for the rest of her life.” There, the court found that the argument was not a “Golden Rule” violation since it simply requested the jury to consider how much they would pay the plaintiff for damages rather than asking the jury how much they would want to receive if it was their case. The Court found that Plaintiff’s counsel asked the jury to do what they are required to do – that is, compensate the plaintiff for injuries sustained once a finding of liability has been made. Id. If the argument is not directed towards damages, the argument may not constitute a “Golden Rule” violation. In Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992) (an automobile rear end collision negligence case), the appellate court found that it was permissible for the defendant’s counsel to discuss the possibility of the jury driving a car and realizing that they were about to hit a car in front of them that had suddenly and unexpectedly stopped before them. The Fifth District Court of Appeals found the argument to be permissible because it was not directed to damages. Id. In order to preserve an objection to a “Golden Rule” violation, it is important that counsel for the defense immediately object to the “Golden Rule” argument. Schreidell, 500 So.2d at 233. The motion for a mistrial should also be made at the time that the improper argument is made. If it is not made contemporaneously with the statement in question, the objection may be waived unless it constitutes a fundamental error. Newton v. South Florida Baptist Hospital, 614 So.2d 1195, 1196 (Fla. 2d DCA 1993); Schreidell, 500 So.2d at 233. If the error is so fundamental as to extinguish a party’s rights to a fair trial, then a new trial may be warranted even in the absence of a timely objection or motion for mistrial. Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993). A contemporaneous motion for mistrial should be made to preserve an appeal on any objection to an improper “Golden Rule” comment made during closing arguments. Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA 1988). The motion for mistrial may be made when the closing argument is finished, but must be made before the jury begins to deliberate. Id. Nevertheless, it is recommended that the objection and motion for mistrial be made contemporaneously with the objectionable so as to avoid any inadvertent waiver of the issue. When making closing arguments to the jury, it is important that the trial attorney not ask the jury to place themselves in the litigant’s shoes. Instead, the trial attorney should refer to the reasonable person or purely state that if the word “you” is said during closing argument, that it does not mean the “jury”, but only means people in general. See Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). If a “Golden Rule” violation occurs, it is important that the opposing party immediately object to the impermissible statement when made, and move for a mistrial. If this is done, the issue will be preserved for appeal.