Egregious Conduct Warrants Mistrial

e·gre·gious: adjective; outstandingly bad/shocking. In the malpractice context, egregious is used to describe conduct that is so extraordinary that it may violate the rules of Professional Conduct.  What is considered egregious can vary depending on the circumstances of the case and often is defined by the end result. Take for example the following case, where counsel’s egregious conduct resulted in a mistrial.  According to the court: “That word – egregious—is difficult to write, but nothing else seems adequate.”

The lawsuit arose from a motorcycle accident during a funeral procession resulting in injuries to the plaintiff. The funeral train was a group of motorcyclists affiliated with the “Set Free” ministries. Following the accident, plaintiff sued the California Department of Transportation. Concerned with some of the potential “cultural baggage” associated with motorcycle groups, counsel for plaintiff filed a series of limine motions, seeking to exclude references to “membership in any motorcycle club” or emblems associated with that gang.  Counsel for the plaintiff also sought to exclude information about plaintiff’s prior termination, hearsay statements in the medical records, and evidence designed to elicit sympathy for the department’s allegedly strapped financial condition.  All the motions were granted.

In her opening statement, counsel for the defendant Department of Transportation made eight statements which were improper. The worst of her errors included a statement about the department’s financial condition, which alleged that there was no money to replace the divider.  She directly violated the court order barring any evidence of plaintiff’s prior employment termination on multiple occasions during cross-examination and in closing argument.   All the violations occurred after a series of sustained objections and “clear admonitions from the trial court.”  She also drew inappropriate and prejudicial conclusions about the appearance of the Set Free ministries logo and attempted to reinforce negative gang associations to plaintiff’s motorcycle group.

The jury returned a defense verdict, and plaintiff filed a motion for a mistrial, which was denied by the trial court.  On appeal, the court focused on the nature and seriousness of the misconduct, noting that defense counsel asked the same question repeatedly despite the trial judge’s rulings and admonitions.  Furthermore, by blatantly ignoring the judge’s rulings, defense counsel made it inevitable that the jury would conclude it also didn’t have to pay attention to the trial judge.

The court took particular exception to counsel’s admitted reasoning for violating many of the court orders, which was to “besmirch plaintiff’s character because some positive evidence had come in (his church work) which tended to put him in a good light.”  The court found that the attacks on plaintiff’s character and repeated emphasis on irrelevant and inflammatory points gave the defense an unfair advantage. The appeals court reversed the denial of a motion for a new trial and referred the attorney’s conduct to the state bar.

The foregoing case demonstrates the detrimental consequences when attorneys don’t fight fair. Defense counsel’s egregious behavior cost her client a favorable verdict.  When preparing for trial, attorneys need to be mindful of any pretrial evidentiary rulings that could affect the presentation of the claims or defenses, and alter their trial strategy accordingly.

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