“Name Calling” Warrants Mistrial in New Jersey

Attorneys are held to a reasonably well defined standard when it comes to professional conduct.  Clearly, however, not all attorneys abide by this code.  What an attorney may consider zealous advocacy can easily turn into unprofessional conduct if taken too far.  Take for example the following case out of New Jersey where comments from the plaintiff’s counsel were found to exceed the bounds of permissible advocacy and resulted in a mistrial, vacating a nearly $2.5 million judgment.

In Burkert v. Holcomb Bus Service Inc. a New Jersey appeals court found that the plaintiff’s attorney prejudiced the jury with improper comments about the defendant and defense counsel during trial.  The case involved a teenager who sued a bus company after the bus dropped her off in an undesignated bus stop and she was subsequently struck by a drunk driver.   The jury returned a $5 million verdict for the plaintiff.

Defendant subsequently moved for a new trial. Defendant argued the verdict was against the weight of the evidence and that the amount shocked the conscience. In support of its motion, defendant cited multiple examples where counsel displayed hostility towards the defendant and defense counsel, asserting that the cumulative effect of such statements prejudiced the jury.   The trial judge denied the motion finding that many of the “hostile” remarks resulted in sustained objections or were stricken from the record with curative instructions.  The trial judge did, however, reduce the award by fifty percent.

On appeal, defendant argued that its motion for a mistrial should have been granted because “the individual and cumulative effect of plaintiff’s counsel’s misconduct inflamed the jury and prejudicially impacted the verdict.”  The proscribed conduct which defendant cited included multiple instances of argument during opening statements, which drew objections at trial.  During defense counsel’s cross-examination, plaintiff’s counsel twice objected to the line of questioning as “stupid.”   Plaintiff’s counsel also asked the jury to “send a message” to defendant, which is improper pursuant to New Jersey law.

Additionally, plaintiff’s counsel attacked defense counsel’s character by insinuating he was insincere, disingenuous and his arguments were “almost a joke” and “laughable”.  Finally, among other improper arguments with respect to damages, plaintiff’s counsel impermissibly invoked the “golden rule” by asking the jury to award an amount it would want for similar pain and suffering.

The appeals court found plaintiff’s counsel’s behavior “offensive” and “unprofessional”, and concluded that the cumulative effect of counsel’s commentary improperly inflamed the passions of the jury and had the ability to improperly influence the jury’s decision-making.

Attorneys need to be mindful of the role of the advocate in all litigious settings.  Aggressively advocating for your client should never cross the line into unprofessional conducted directed to the opposing counsel or party.  As the court in Burkert so aptly stated, “the role of a legal advocate is to provide reasoned analysis of the evidence and the credibility of testimony. Puerile name-calling is condemned.”

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