Thomas R. Newman

This column discussed this subject almost 20 years ago (NYLJ April 7, 1999), but two recent decisions publicized on the front pages of the Law Journal suggest that it would be well to advise a new generation of lawyers that tactical victories in a jury trial may be followed by a loss of the appellate war. As a reminder, King Pyrrhus of Epirus, in Greece, triumphed over the Romans at Asculum, in southeastern Italy, in 279 B.C.E., but his losses were so heavy that he is reported to have said: "Another such victory over the Romans, and we are undone." Bartlett's, "Familiar Quotations," p. 92, quoting Plutarch, "Lives," Pyrrhus.

In litigation, the aim of an injured plaintiff is to obtain monetary or some other form of relief; for the defendant, vindication and dismissal of the action. It cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel's avoidable error.

Two months ago (NYLJ, May 3, 2017), we discussed Smith v. Rudolph, __ A.D.3d __, 2017 WL 1377809 (1st Dept 2017), in the context of the appellate division's rare exercise of its broad interest of justice jurisdiction to affirm the grant of a new trial because of defense counsel's misconduct, even though plaintiff's counsel had failed to move for a mistrial before the jury returned its verdict for the defendant.

The case is an exemplar of a pyrrhic victory achieved through defense counsel's "pervasive pattern of misconduct that permeated the month-long trial," and "created a climate of hostility that so obscured the issues as to have made the trial unfair." Id. at *3. Defense counsel's misconduct included "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 [and] created a climate of hostility that so obscured the issues as to have made the trial unfair." Although explicitly reprimanded for his misconduct, defense counsel was undeterred. He persistently made his improper remarks "over the recurring and almost constant objection of counsel for plaintiff, and … even though the trial court sustained the objections." Id.

Maraviglia v. Lokshina, 92 A.D.3d 924 (2d Dept. 2012), is another case where the Appellate Division reversed and ordered a new trial "in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants." Specifically, the defendants' counsel repeatedly denigrated the medical background of the plaintiff's treating physician; made inflammatory remarks and, during summation, accused plaintiff's treating physician and plaintiff of "working the system;" and" improperly remarked that the plaintiff's treating physician 'was the 'go-to' doctor in Suffolk County for patients who wished to stop working.'" Id. at 924-25. In addition, counsel persistently questioned plaintiffs' expert about an unrelated Department of Health investigation, "despite the expert's testimony that the investigation did not involve his practice, and the defendants' lack of any evidence to the contrary." Id. at 925.

Most recently, in Estate of Joseph Hilt v. Carpentieri, Index No. 10589/11 (Sup. Ct., Nassau Co., May 3, 2017), a medical malpractice wrongful death action, the trial court set aside a $1,000,000 verdict after a three-week trial finding "plaintiffs' counsel engaged in inappropriate behavior in the presence of the jury and that the cumulative effect of counsel's conduct during trial and in his summation to the jury was prejudicial to the outcome of the trial and created an atmosphere that deprived the defendants of a fair trial." Id. at *9. Plaintiffs' counsel appeared to have been improperly attempting to communicate with the jury, and, in his summation, "suggested that defense counsel and witnesses had lied or manipulate[d] the truth vouched for the veracity of the plaintiffs' witnesses and went on to offer his personal opinion and interpretation of the facts and certain medical records without the benefit of supporting testimony." Id. at *3.

Other forms of counsel misconduct, although more respectful in tone, will lead to the same undesirable result—a new trial. For example, it is a thoroughly established evidentiary proposition that a police record containing conclusions of the police officer who was not a witness, self-serving declarations of parties to an accident or hearsay statements of third parties are not admissible into evidence, even though the record is a business record. Rubin v. O'Donnell, 37 A.D.2d 858 (2d Dept. 1971); Johnson v. Lutz, 253 N.Y. 124, 128 (1930). Nevertheless, some lawyers continue to introduce such records into evidence hoping to gain some tactical advantage at trial. If successful at trial, they are invariably compelled to retry the case when an appellate court rules that the records were inadmissible.

It is also well-settled law that testimony as to a settlement or offer of settlement by a witness or party is inadmissible. Brown v. Schneider, 32 A.D.2d 712, 713 (3d Dept. 1969), and the asking of a question concerning a settlement or offer of settlement by counsel to a witness, which he knows cannot be properly answered, constitutes prejudicial reversible error. Catalfamo v. Boucher, 33 A.D.2d 1081 (3d Dept. 1970); Brown, 32 A.D.2d 712.

Another good example of the sheer futility of such actions is Nicholas v. Rosenthal, 283 App. Div. 9 (1st Dept. 1953). In that case, the defendant's counsel knew that the paper he was offering into evidence was inadmissible, but he kept offering it despite its exclusion. He won the case. But he lost on appeal. The First Department held that it was clear that the attorney was making an attempt to get before the jury evidence he knew to be incompetent, for the ulterior purpose of creating a false impression that fair evidence was being withheld from the jury on technical grounds. The court's concluding admonition should always be borne in mind: "Courts of justice exist for the purpose of securing a fair determination of controversies. When counsel resort to improper practices to win a verdict, they imperil the verdict which they thus seek." 283 App. Div. at 12.

The lesson to be learned from these and similar cases is that if you know a question is clearly improper, or that some evidence is clearly inadmissible, it is folly to insist, over objection, on trying to get it into evidence or otherwise bring it to the attention of the jury. You may gain a temporary advantage that, in some cases, may lead to a favorable settlement, but the more likely result is that you will end up retrying the case before a judge who will not be pleased to see you back in his or her courtroom.

Insistence on an improper request to charge can have equally unfortunate appellate consequences. An attorney making a request for a charge is, in effect, putting words into the mouth of the court. The request, therefore, should be absolutely correct in every respect. If it overstates a proposition of law, or if the request assumes as a fact something that has not been proven to be the fact, or is not fairly to be inferred from the testimony, there is no basis for complaint on appeal if the court declines the charge as requested.

The request to charge is to be taken as a whole, factually as well as legally, and the court is not called on to pick out and charge the portion that is good and to eliminate and refuse to charge the part that is not sound. It is, therefore, well to avoid dogmatic conclusions in the request.

For example, requests to instruct the jury that if certain facts are found, the jury must—as distinguished from may—return a certain verdict can lead to appellate trouble. Before a jury can be properly told that it must find a verdict for the party, the request should embrace all the elements needed to establish or abort a cause of action. If the jury is not told all the factual aspects in an instruction by which it is sought to compel a verdict, then the instruction is incomplete and hence, unfair, and may result in a reversal.

The other side of the coin is presented by the situation where you know that your adversary is right, and you also know that the judge is going to rule in your favor. A typical case is one in which your adversary makes a request to charge that is sound and appropriate and the judge is going to deny it. Consent to the instruction, even though, to some, it may seem counterintuitive to do so. What is the point in obtaining a verdict that is sure to be reversed because a proper request to charge was refused? To gamble that the appellate court will find the error to be harmless is to bet against long odds.

In sum, if your adversary's position with respect to a material point, whether evidentiary or legal, is known to you to be correct and you see that a ruling is going to be made against him or her, consider the advisability of consenting to your adversary's request.

Thomas R. Newman is of counsel to Duane Morris and author of 'New York Appellate Practice' (Matthew Bender). Steven J. Ahmuty, Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.