It has long been recognized that as an officer of the court, the trial attorney has a special obligation to protect the tribunal from conduct that undermines the integrity of the adjudicative process.1 This obligation extends to relations with the court itself and also to relations with the jury charged with the exclusive power to determine the credibility of witnesses and resolve issues of fact.
The trial attorneys' obligation to protect the integrity of the adjudicative process is an obligation that stands apart from the obligation to render effective representation of their clients' rights. Given the professional conduct implications, one might even argue that the ethical obligation is the heavier of the two. This ethical obligation assumes particular importance in medical malpractice actions, where the issues are complex and the stakes are high for both sides.
The selection of a civil jury to hear a medical malpractice case in New York is a largely unsupervised process whereby most attorneys select an impartial panel of jurors in cooperation with their adversaries. Rulings by the supervising judge on challenges to a particular juror or the array of jurors are infrequent and usually resolved on the attorneys' accounts of the specific controversy.
Where events have occurred that bring the impartiality of the juror or panel of jurors into legitimate question, the court will generally discharge the juror or jurors rather than attempting a curative instruction to restore impartiality.2 Once a jury is selected and sworn, however, the courts tend to prefer final disposition of the generally time-consuming malpractice case and the discharge of jurors is a less frequent occurrence.
Motions in Limine
The trial attorney who expects that evidence or areas of inquiry at trial may adversely affect the impartiality of the jury has the option of addressing the issues in the context of a motion in limine which can be argued prior to opening statements. This enables the trial court to review a technical controversy as a whole without the jury present rather than treating it in the context of piecemeal trial objections.
With the possibility for reflection and accommodation, a clear ruling will often balance the probative value of the evidence against its prejudicial effect, and safeguard the impartiality of the jury. It could be argued that the trial attorney is obligated to allow opposing counsel and the court to address such topics in limine to assure the integrity of the adjudicative process. Where the alternative has counsel attempting to elicit prejudicial material over repeated objections from her adversary, the point becomes clear.
Trial counsel is supposed to be limited to stating what the claims are and what on behalf of her client she intends to prove. The attorney is constrained by the New York Rules of Professional Conduct from alluding to any matter that the lawyer does not reasonably believe is both relevant and supported by admissible evidence.3 Before taking a position on a disputed issue of fact, the attorney has the obligation to make reasonably diligent inquiries to assure that his statement is true.4
Trial counsel never wants to interrupt the opening statement of an adversary, but this may be necessary under some circumstances. The trial attorney has a familiarity with the facts of the case which the court does not. If the adversary's opening statement is diverting the jurors from the legitimate issues, appealing to passion or prejudice, or is otherwise improper, that conduct is not likely to correct itself over the course of the trial. In the absence of timely objection, a request for a proper curative instruction, or a motion for a mistrial, the point may be waived. This in turn may mean that the reluctant attorney's client is prejudiced, the impartiality of the jury is eroded, and the point has not been preserved for post-trial or appellate review.
When it becomes necessary to interrupt an opponent's opening, the attorney will usually express reluctance but what is important to convey is that mere disagreement with what has been said is not the reason for the intrusion. Without stating in front of the jury that a comment is improper, the objecting attorney may approach the issue indirectly, by saying simply, "I am constrained to object," and indicating that the argument will be amplified later, or a record made at the appropriate time. Counsel may similarly refer to the need for a curative instruction, or the "withdrawal of a juror," which will signify to the court that the attorney is requesting a mistrial.
The intrusion needs to be timely in order to give the court an opportunity to inquire into the issue and render a timely ruling or instruction, but the objecting attorney needs to understand that the court's and jury's tolerance for the interruption will be limited. A balance must quickly be found between preserving the objection and annoying the finder of fact.
Too often after raising a timely objection in the presence of the jury, trial counsel forgoes the opportunity to make a full record when court is next in session with the jury absent. First, addressing the issue in detail without the jury present is an opportunity to limit future transgressions by opposing counsel, if the court agrees that the challenged comment was improper, and protect whatever remains of the impartiality of the jury. Second, it is an opportunity to allow the court to understand the possibly arcane medical issue and the threat it constitutes toward the impartial appraisal of the evidence. Finally, it allows counsel an unencumbered opportunity to protect the record with a detailed objection, request for a curative instruction, and a motion for a mistrial in the egregious case.
Many trial judges are entirely too casual or superficial in their approach to curative instructions. The court may tell the jury that "what the attorneys say is not evidence" or say "please disregard what the attorney said" without being specific, or simply observe that "the attorneys have differing views of the case." Where there has been a transgression worthy of the interruption these platitudes are not curative of the harm to which the opposing party has been exposed.
The court may maintain that a full curative instruction would not be helpful because it would only involve repeating the offensive content, which would compound the injury. However, if the impartiality of the jury is so threatened by repetition and cannot be cured, a mistrial is the only logical alternative. If the opposing attorney sees that his efforts to that point have produced nothing more than the opportunity to start the trial over, it is not likely that the offense will be repeated. Consequently, the most effective long-term solution to the problem may be the granting of a mistrial even though that may at first seem at odds with the interests of the litigants in a complex medical malpractice trial.