Tuesday, April 18, 2017

Not Worthy Of Admiration

The New York Appellate Division for the First Judicial Department affirmed the  grant of a new trial due to the misconduct of defense counsel

We all admire the work of an advocate who performs his or her duties with competence and diligence on behalf of a client. Competent and diligent representation, however, does not mean a lawyer should strive to "win" a case at all costs, if that means harming adversaries and their clients unreasonably and unnecessarily in the process and undermining the authority and integrity of the court. In this case, as fully explained below, defense counsel extended himself far beyond the permissible bounds of advocacy, on many occasions throughout the trial. Given defense counsel's woefully improper conduct, the trial court providently exercised its discretion in granting a new trial in the interest of justice.

The plaintiff had claimed injuries "sustained during a pedestrian knock down accident."

Supreme Court granted plaintiff's motion for a new trial on the ground of improper conduct by defense counsel in the interest of justice. It denied the remaining requests for relief as moot. In ordering a new trial, the trial court concluded that defense counsel's conduct was "so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial." Also, such conduct "occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt."

The court then cited the multiple instances of defense counsel's misconduct: "frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)"; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a "real surgeon"; his pattern of interrupting and speaking over the court despite the court's directions to stop; and his interruption of the trial by demanding that plaintiff's counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a "sneering, denigrating tone" while cross-examining Dr. Davy and plaintiff's other witnesses. The court also noted as not reflected in the record the "tone of voice" directed at plaintiff's counsel, witnesses, and the court, or the "volume of his voice"; the court noted that it had admonished counsel "not to scream" on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop.

The trial court clarified that where the transcript showed the court saying "stop" or "overruled" multiple times in succession, it was because defense counsel had continued to speak despite the court's direction. The court concluded that the improper comments about Dr. Davy and Dr. Guy could not be deemed harmless, as the nature and extent of plaintiff's injuries were in significant dispute. It also determined that this case did not present a situation where there was overwhelming evidence in favor of defendants and where an isolated comment could be deemed harmless. In light of the foregoing, the court ordered a new trial in the interest of justice. This appeal ensued.

We now affirm. We are mindful that a counsel's objection to improper conduct, but failure to timely move for a mistrial before a jury returns a verdict, renders the error unpreserved and "may limit appellate review" (Rivera v Bronx-Lebanon Hosp. Ctr, 70 AD2d 794, 796 [1st Dept 1979]). However, pursuant to CPLR 4404(a), the court, upon the motion of any party or on its own initiative, may set aside a verdict "in the interest of justice." This "is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein" (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 NY2d 376, 381 [1976]). In this regard, the trial court must decide, based on " common sense, experience and sense of fairness,'" whether "it is likely that the verdict has been affected" by the alleged misconduct (id.; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.11). The trial court's determination is "discretionary in nature" and should not therefore be reversed absent an abuse or improper exercise of discretion (see Micallef, at 381-382)

In this case, we find that the trial court properly considered plaintiff's posttrial motion and granted a new trial in the interest of justice (see CPLR 4404[a]), as defense counsel's misconduct constituted fundamental error that deprived plaintiff her of substantial justice and likely affected the verdict (Micallef, 39 NY2d at 381; Selzer v New York City Tr. Auth., 100 AD3d 157, 162 [1st Dept 2012]). On these facts, this was not a close question. The record shows a pervasive pattern of misconduct that permeated the month-long trial. As pointed out by the trial court, the more egregious examples include the denigration of Dr. Davy and Dr. Guy; counsel's unsupported assertions that doctors provided unnecessary treatment as part of a money-making conspiracy; and counsel's assertion of his personal view that plaintiff was pursuing the lawsuit only because she wanted to "take the rest of her life off."

Moreover, like the trial court, we are convinced that defense counsel's denigration of plaintiff's witnesses and unsupported inflammatory comments throughout trial "appear[] to have been calculated to influence the jury by considerations which were not legitimately before them, and cannot be dismissed as inadvertent, thoughtless or harmless" (Kohlmann v City of New York, 8 AD2d 598, 598 [1st Dept 1959]). Indeed as noted by the trial court, this was not a case of an isolated or inadvertent comment. Rather, the improprieties permeated the entire trial, in a continuing pattern of misconduct. The remarks were persistently made over the recurring and almost constant objection of counsel for plaintiff, and were repeated even though the trial court sustained the objections. Defense counsel even persisted after the trial court explicitly reprimanded him for his misconduct. Under the circumstances, counsel's persistent speaking objections, interruptions, "screaming," refusals to heed the court's admonishments, and use of a "sneering, denigrating" tone toward opposing counsel, plaintiff's witnesses, and the court, created a climate of hostility that so obscured the issues as to have made the trial unfair (cf. Duran v Ardee Assoc., 290 AD2d 366, 367 [1st Dept 2002]). The cumulative effect of defense counsel's remarks undoubtedly served to leave the intended, indelible impression upon the minds of the jurors.

Justice Friedman concurred

It is only in the rare case where the misconduct of opposing counsel was so wrongful and persistent as to constitute a fundamental error and a gross injustice that a trial court may providently exercise its discretion under CPLR 4404(a) to set aside the verdict on the grounds of such misconduct, in spite of the aggrieved party's failure to make a timely mistrial motion (see Boyd, 79 AD3d at 413; Heller v Louis Provenzano, Inc., 257 AD2d 378, 379 [1st Dept 1999]). Although the instant appeal presents a close question, my ultimate conclusion is that this one of those rare cases. I therefore concur in the affirmance of the order under review.

(Mike Frisch)

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