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.

Jury Selection

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.

Opening Statements

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.

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

Closing Arguments

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

Conclusion

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.

Endnotes:

1. New York Rules of Professional Conduct 2006, Rule 3.3, comment 12.

2. Civil Practice Law and Rules §4108.

3. New York Rules of Professional Conduct 2006, Rule 4.3 (d)(1).

4. New York Rules of Professional Conduct 2006, Rule 3.3, comment 3.

5. Pattern Jury Instructions 1:37.

6. New York Rules of Professional Conduct 2006, Rule 3.5, comment 4.

7. Caraballo v. City of New York, 86 AD2d 580 (1st Dept., 1982); Nuccio v. Chou, 183 AD2d 511 (1st Dept. 1992).

8. Becker v. Koch, 104 NY 394 (1887), Marzuillo v. Isom, 277 AD2d 362 (2d Dept. 2000).

9. New York Rules of Professional Conduct 2006, Rule 3.4(c).

10. New York Rules of Professional Conduct 2006, Rule 3.5, comment 4.

11. Friedman v. Marcus, 32 AD3d 820 (2d Dept., 2006).

12. Cohen v. Covelli, 276 App Div 375, 376 (1st Dept., 1950).

13. O’Neil v. Klass, 36 AD3d 677 (2d Dept., 2007).

14. Maraviglia v. Lokshina, 92 AD3d 924 (2d Dept., 2012).

15. Kohlmann v. City of New York, 8 AD2d 598 (1st Dept., 1959).

16. Friedman v. Marcus, 32 AD3d 820 (2d Dept., 2006).

17. Binder v. Miller, 39 AD3d 387 (1st Dept., 2007).