Commercial Litigation and Arbitration

Improper Argument and Remarks at Trial — Sanctions

Feelings often run high at trial, and they ran high enough in Maday v. Public Libraries of Saginaw, 480 F.3d 815 (6th Cir. 2007), that the issue was whether a mistrial was required. Defense counsel in this employment-related case began her opening statement with a derogatory reference to the length of the opening of plaintiff’s counsel:

I see it in your eyes, it's not going to be an hour and ten minute on [sic] opening statement, I promise you. I was having to sit back there, another problem with going second in these trials is I have to sit back and just bite my knuckles.

She echoed the aggressive theme at the end of her summation:

Before I get started on my planned discussion here, I wanted to just say one thing because I've had to sit back there and every time I'm hearing from [plaintiff’s counsel] it's like nails on a chalkboard. It's driving me crazy. Mr. [X, a witness] never said at any point in time that [the plaintiff] was disciplined, fired, [or] job changed . . . . He never testified to that. I'm not asking to you [sic] take my word, I'm asking you to think back on your memory as to what was asked to him by [plaintiff’s counsel]. . . .

Throughout the trial, defense counsel allegedly ‛repeatedly made inappropriate facial gestures as a means to communicate with the jury and cast doubt on [plaintiff’s] case and [her counsel’s] abilities as a lawyer.“ Finally, at a sidebar, defense counsel loudly accused plaintiff’s counsel of lying (the judge addressed this last one with a curative instruction.

Legal standard: ‛Misconduct by an attorney that results in prejudice may serve as a basis for a new trial. The burden of showing prejudice rests with the party seeking the new trial, and district courts have broad discretion in deciding whether to grant a motion for a new trial“ (citation omitted). The district judge has ‛broad discretion in determining whether attorney ... comments improperly prejudiced the jury,“ applying a ‛totality-of-the-circumstances approach.“

Held: ‛This case ... appears to involve nothing more than verbal (and perhaps also non-verbal) sparring between trial attorneys, an occurrence not uncommon ‘in the heat of battle,’" as the trial judge correctly pointed out.“ Decision not to grant a mistrial for attorney misconduct affirmed.

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