Conduct During Trial
During the presentation of evidence to the jury, it is useful to recall that the jurors are the sole and exclusive judges of the facts, and as such the jurors alone determine which witnesses should be believed, what testimony should be accepted and what weight should be given to the evidence.5 Jurors determine the credibility of sources of information and what information to believe on a daily basis, usually without any help from attorneys.
Where a trial attorney is discourteous, abrasive, or abusive toward a witness, this constitutes a breach of professional ethics in and of itself.6 However, it may also tend to negate a proper source of medical evidence even before the evidence is received or evaluated by the hopefully impartial jury. It is abundantly clear that the trial attorney may not articulate his own facts or opinions before the jury,7 but by means of a repetitive, hostile and incredulous cross-examination, such as suggesting that an egregious act of malpractice was committed, or accusing a doctor of altering a chart without a good faith basis for doing so, an attorney can succeed in doing just that. The overbearing attorney seeks to dismiss the source of the evidence as unreliable before the jurors can form a proper impression of the witness or her testimony for themselves.
It is well established that the law permits counsel for the plaintiff to call the individual physician defendants or the employees of a defendant hospital on her direct case and question them as hostile witnesses. This right is circumscribed and counsel may not impeach a witness she has called to the witness stand.8 The law allows the physician defendants to be interrogated with leading questions, but this does not open a door to a full-blown cross-examination of the doctors even where they are overtly hostile. The interrogating attorney must recognize this important distinction, which allows the jury to reach its own conclusions regarding the believability of the witness and the evidence provided.
Even the most dedicated and intelligent jurors have little familiarity with the legal process, and it is the explicit responsibility of the court and counsel to protect the impartiality of the jury. The jury is excluded from sidebar arguments and carefully instructed throughout the trial to limit its consideration to the evidence alone. To permit trial counsel to invade the province of the jury and pronounce during the presentation of evidence either directly or indirectly which sources are worthy of belief clearly undermines the impartiality of the jury. Often that is its very purpose. It also undermines the integrity of the adjudicative process.
Although it is also a breach of the Rules of Professional Conduct to disregard the ruling of a tribunal during the course of a proceeding,9 some trial attorneys have the regrettable tendency, on occasion, to compete with the court for who will be the authority in the courtroom. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants,10 but skilled attorneys can project to a jury that the trial judge is obstructing the justice she is charged to safeguard. Since this conduct is not only unethical but also diverts the jury from its duty to determine the issues on the evidence alone, it will furnish a basis for post-trial relief, but only where the record is properly protected.11
Generally speaking, the trial courts extend wide latitude to counsel in closing arguments, allowing commentary on the evidence which is essentially unrestrained.12 However, there are clearly established boundaries and again it is the preservation of the impartiality of the jury and the integrity of the adjudicative process which should control the conduct of trial counsel.
Fair comment on the evidence does not permit the trial attorney to participate in the vilification of opposing counsel or her witnesses, characterizing responses of a witness as "lies" or characterizing an opposing medical expert as a "professional witness" whose role was to mislead the jury.13 Nor does it permit counsel to argue that the plaintiff and her treating physician were "working the system" and characterize the opposing witnesses in unflattering terms.14 Where "extraneous matters beyond the proper scope of the trial" may have substantially influenced the outcome, an appellate court may determine that justice demands a new trial.15 The appropriate measuring stick is whether the impartiality of the jury was protected and the integrity of the adjudicative process was preserved.
Trial attorneys are well advised to protect the record for post-trial review, for the trial court has to be given whatever opportunity there may have been to preserve the integrity of the process. Where counsel failed to ask for a mistrial when the offensive conduct occurred, the appellate courts have typically refused to grant a new trial after the fact.16
Although the trial judge and all counsel are obligated to assure the integrity of the adjudicative process, each attorney also owes a duty of undivided loyalty to his or her client. Where an attorney persistently attempts to divert the jury's attention from its sworn duty to resolve the issues on an impartial analysis of the evidence, his efforts may be recognized for what they are by some or all of the jurors. In the event that his client is unsuccessful at trial, that client might also question the commitment of the attorney to his ethical obligations.
From the perspective of the attorney who sees the integrity of the adjudicative process being eroded before his eyes, close attention must be paid to timely objections giving the court the opportunity to issue corrective instructions where correction is possible, and well-articulated motions for mistrial. The ethical obligations of trial counsel are not always sufficient in and of themselves to assure that the jury's impartiality remains untainted and the record is protected for review. Although the trial court may prefer that summations not be interrupted, a judge's prohibition of objections during summation is not appropriate as it is the duty of opposing counsel to object, request an admonition of counsel, obtain a curative instruction, or request a mistrial.17
The trial attorney is under a continuing ethical obligation to protect the integrity of the adjudicative process and the impartiality of the jury throughout the trial. It is an obligation with far-reaching consequences for the attorney, well beyond his duty to the litigant he represents before the court.
John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.
1. New York Rules of Professional Conduct 2006, Rule 3.3, comment 12.