Attorney Exploitation of Motion in Limine Order Excluding Evidence and Reference to Facts Outside the Record Constituted Prejudicial Misconduct Warranting a New Trial | Haight Brown & Bonesteel LLP

In Jackson v. Park (B297616, July 27, 2021), the Second Appeal District Court investigated the nature and degree of misconduct by attorneys that could constitute a miscarriage of justice that requires new trial. The appeals court ruled that a lawyer’s closing arguments, claiming that evicted evidence never actually existed, and reasoning off-file facts, constituted detrimental misconduct on the part of the lawyer that warranted retrial.

In Jackson, the plaintiff filed a personal injury lawsuit resulting from a minor collision with a motor vehicle. Following the incident, the defendant was arrested for drinking under the influence of driving and was not later appealed. In the trial, the defendant admitted liability, but denied the cause and damage. In ruling on the parties’ motions, the court excluded evidence of the accused’s blood alcohol content (“BAC”), alcohol test results, arrest and conviction. During the closing arguments, the defense attorney challenged the exclusion of this evidence by arguing that “[t]There is no evidence of an arrest, from BAC or [of a] Conviction “, the”[i]In this case there is no evidence for [defendant’s] Blood alcohol, and there will be none “and”[t]there is no definitive evidence of poisoning here. ”The defense attorney went so far as to show a demonstrative exhibit that made the same allegations.

In addition, the defense attorney argued that Dr. Stephanie Lafayette, who investigated the plaintiff days after the incident and who the plaintiff reported that he had “no” medical problems or pain at the time, was deliberately not disclosed by the plaintiff. However, neither the plaintiff’s answers to the questions nor his testimony supporting this claim could be proven. In order to uphold the plaintiff’s objection, the court ruled that the facts were undetectable and ordered the jury to ignore the argument. Next, the defense attorney told the jury that his office had “followed up” [Dr. Lafayette] The court reiterated the plaintiff’s objection, commenting that the defense attorney was “approaching misconduct” and stated that such investigative acts were also undetectable. Ultimately, the court ordered the jury to review the defense attorney’s arguments regarding the Plaintiff’s failure to call Dr. Lafayette and disregard regarding alcohol evidence.

The next day, the jury awarded the plaintiff $ 15,235 for past economic damage, $ 2,000 for past noneconomic damage, and no future damage. The plaintiff filed a letter of intent for new proceedings in a timely manner, arguing that her defense attorney had committed willful misconduct. The defendant replied that the lawyer’s alleged wrongdoing, if any, has been cured by the court’s admonitions and that the evidence supports the jury’s verdict. The court overturned the jury’s verdict and granted the motion for a retrial on the grounds of “multiple incidents of lawyer misconduct”. The defendant appealed.

The court of appeal stated that legal misconduct constituted an “irregularity in the procedure” – a reason for granting a new procedure under Section 657 of the Code of Civil Procedure Misconduct and then evaluating the resulting prejudices. As a first step, regarding the excluded evidence, the appellate court stated: “It is inappropriate for an attorney to allege or assume facts that are not available as evidence that the attorney knows could refute excluded evidence.” As for Lafayette, she found that the defense attorney had mistakenly referred to evidence that was not on file, that he mistakenly referred to that evidence after being advised to stop, and wrongly in front of the jury with the Court had argued “in a transparent attempt to highlight”. not to mention the evidence that the court had instructed the lawyer to do. “

Next, after finding misconduct, the appeals court examined the extent of the disadvantage. The appeals court stated: “It is not enough for one party to show misconduct by a lawyer. In order to justify a new trial, the party must demonstrate that the wrongdoing was prejudicial. ”In essence, this standard requires the examining court to determine whether it is reasonably likely that the party alleging the wrongdoing will do a more favorable one Would have achieved result if the misconduct had not occurred. On this issue, the appeals court found that the defendant’s inappropriate reasoning was the common theme that the plaintiff was untrue, i.e. that the plaintiff lied about the defendant’s intoxication and Dr. Lafayette kept silent. These inadequate arguments, the appellate court said, caused the jury to reject the plaintiff’s evidence almost entirely and to overemphasize that of the defendant’s witnesses. Ultimately, the appeals court ruled that while each of these inappropriateness of defense counsel’s arguments “could have been sufficiently detrimental to” [plaintiff] to justify a new trial ”, cumulatively, it was quite likely that the plaintiff would have obtained a more favorable outcome without such misconduct on the part of the attorney.

While Jackson acknowledges that legal misconduct alone may not be enough to warrant a new trial, it serves as a firm reminder to be careful when making arguments at trial that relate to excluded evidence and / or fact or they do not touch in the protocol.

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