concurring:
I agree that the district court’s order granting a new trial must be affirmed as to damages but reversed as to liability. I write separately to address the inference that may be drawn from the separate opinion of Rose, J., that we must address all claims of attorney misconduct in comparison with those addressed in DeJesus v. Flick.1 In my view, claims of plain error arising from attorney misconduct should only rarely implicate the analytical construct of DeJesus.
Notwithstanding the resolution of a very discrete fact pattern in DeJesus, the general rule of appellate review in this state holds that trial counsel must perfect objections on the record to preserve a record on appeal. We have also traditionally agreed with the proposition articulated by other state courts that, “[generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.”2 Thus, it is only in extreme cases that a trial court cannot adequately defuse an act of impropriety committed in the presence of a jury.3
Reversal under the plain error doctrine based upon claims of attorney misconduct to which no objection is lodged is only appropriate when we can clearly determine from the record that the verdict obtained is objectively unreliable.4 However, given the divergence of opinion within this court over this appeal, as well as the four-to-three split of this court in DeJesus, what constitutes objective non-reliability can be the subject of reasonable intellectual or philosophical differences. The dissents here and in DeJesus demonstrate the confusion that can occur when we, on a case-by-case basis, make these difficult determinations in the context of published opinions. Thus, we should engage in plain error analysis of misconduct to which no objection has been made with great care, and with the understanding that discrete patterns of misconduct do not set the standard for evaluating plain error. Rather, the nature of the conduct must be weighed in the individual case along with whether the conduct has had a real effect on the reliability of the verdict rendered by the jury. In this, we must concede that no litmus test for evaluating these matters is possible.
I also suggest that we operate from the premise or presumption *28that, in civil cases, failures to object or seek a mistrial in connection with attorney misconduct are the result of tactical or strategic choices by trial counsel. When failure to object or seek a mistrial can be reasonably attributed to tactical choices of trial counsel, we need not reach the question of plain error absent the most egregious misconduct resulting in a verdict that is clearly and objectively unreliable.
In this case, as an apparent matter of trial tactics, defense counsel chose to let much of the conduct complained of go unchallenged either by way of objection and a request for admonishment of the jury or a request for a mistrial. The record below suggests that defense counsel could have reasonably concluded that the histrionics of Cantarino’s counsel were having a negative rather than a positive effect on the jury. This, however, turned out not to be the case. The jury verdict in this case was the result of a calculated risk taken by an experienced attorney retained at the election of the client. We should not intervene to disturb this kind of dynamic in civil cases.
Given that the failure to object or seek a mistrial was so arguably a matter of trial tactics, any issue arising from the alleged misconduct in this case was waived. Thus, we need not undertake a comparison of the conduct below to that discussed in DeJesus. Also, as noted by Agosti, J., in her separate opinion herein, the real issue in these matters does not, of necessity, involve a comparison of conduct, but rather, involves the net effect of the misconduct on the verdict actually obtained.
116 Nev. 812, 7 P.3d 459 (2000).
Horn v. Atchison, Topeka and Santa Fe Railway Co., 394 P.2d 561, 565 (Cal. 1964); see also DeJesus, 116 Nev. 812, 826, 7 P.3d 459, 468-69 (Rose, C. J., dissenting).
Id.
DeJesus, 116 Nev. at 816, 7 P.3d at 464-65.