concurring:
For the reasons stated by the majority with regard to the trial court’s communication with the jury, I agree that this case should be remanded for a full trial on both liability and damages. I write separately with regard to the claims of misconduct lodged against Mr. Canterino’s counsel to elaborate upon my separate concurrence submitted with the original opinion in this matter.
In my original separate concurrence, I concluded that the remarks of Canterino’s counsel did not merit a new trial. I am still of that opinion. My prior concurrence attempted to apply the majority ruling in Dejesus v. Flick,1 by concluding that the ver-*195diet reached by the jury below was not “objectively unreliable.” In this I stated:
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.2
The arguments on rehearing, coupled with the fact that I did not participate in the DeJesus decision, have persuaded me to more definitively weigh in on the statement of doctrine governing situations of attorney misconduct when the opponent does not object or move for mistrial. It is important that I do this because the members of this court that did participate in DeJesus were evenly split on this issue. Although appreciating the sentiments of the majority in that case, I have come to agree with the dissenters in DeJesus in terms of the rule that should apply to unobjected-to misconduct in civil cases. That rule is stated by the DeJesus dissenters as follows:
‘‘It is only in those rare circumstances where the comments are ‘of such sinister influence as to constitute irreparable and fundamental error’ that the absence of objection will be overlooked.” 3
Unlike criminal cases, in which most defendants are represented by counsel not of their own choosing, civil litigants generally exercise free choice in the selection of an attorney. Also, property rather than liberty interests are at stake. Thus, the protection from attorney misconduct arises from a completely different dynamic. The choice to object, to not. object or to seek a mistrial is, as a general matter, one of tactics by the attorney chosen to represent the affected party. Given the disparity of opinion *196on the issue within this court, the original majority in DeJesus has quite arguably made it difficult for trial judges to know when to intervene to avoid a reversal when misconduct occurs and that misconduct is not met with an objection from the opposing side. The division of the court on this issue may also have made it difficult for civil trial attorneys to determine where the line of propriety is drawn to avoid implication of the plain error doctrine. This is underscored by the original dissent of Justice Rose in this case, in which he attempts to apply DeJesus on a comparative basis to this matter. I firmly believe that we should not engage in such comparisons. These are decisions that must be made on a case-by-case basis. Thus, recognizing that no litmus test for judicial intervention in these situations can be divined, I am constrained to agree with the more relaxed standard articulated in the DeJesus dissent. In this, I make no comment on how I would have applied this rule in DeJesus since I was recused in that matter.
I stress again that we should operate from the premise or presumption that, 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. As I observed originally:
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 Canterino’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.4
Thus, my decision that a full trial on liability and damages is necessary is not at all based upon the allegations of misconduct made against Canterino’s trial counsel.5 Rather, it is based upon the fact that we should have adopted the rule on the jury communication issue adopted by the Arizona Supreme Court.6
116 Nev. 812, 7 P.3d 459 (2000).
Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 27, 16 P.3d 415, 420 (2001) (Maupin, C. J., concurring).
DeJesus, 116 Nev. at 827, 7 P.3d at 469 (Rose, C. J., dissenting) (quoting Budget Rent A Car Systems, Inc. v. Jana, 600 So. 2d 466, 467 (Fla. Dist. Ct. App. 1992) (quoting LeRetilley v. Harris, 354 So. 2d 1213, 1215 (Fla. Dist. Ct. App. 1978))). Four commissioned members of this court have .now taken this view in separate decisions: Justice Leavitt, Justice Rose, Justice Sheamng and myself.
Canterino, 117 Nev. at 28, 16 P.3d at 420 (Maupin, C. J., concurring).
Justice Agosti questions my re-raising of the DeJesus issue at this time. While I appreciate her concern, the issue was raised on rehearing. Further, the uncertainty over the split decisions of the court on the issue led me to conclude that the bench and bar of the state should know where all of the justices stand on it as soon as possible.
See Perkins v. Komarnyckyj, 834 P.2d 1260 (Ariz. 1992).