Attorney Exploitation of Motion in Limine Order Excluding Evidence and Reference to Facts Outside the Record Constituted Prejudicial Misconduct Warranting a New Trial

In Jackson v. Park (B297616, July 27, 2021), the Second Appellate District for the Court of Appeal examined the nature and degree of attorney misconduct that could amount to a miscarriage of justice sufficient to require a new trial. The appellate court held that an attorney’s closing arguments claiming that excluded evidence actually never existed and arguing facts outside the record constituted prejudicial attorney misconduct warranting a new trial.

In Jackson, plaintiff filed a personal injury action arising out of a minor motor vehicle collision. Following the incident, defendant was arrested for, and later pled no contest to misdemeanor charges of driving under the influence. At trial, defendant admitted liability, but contested causation and damages. In ruling on the parties’ motions in limine, the court excluded evidence of defendant’s blood alcohol content level (“BAC”), breathalyzer test results, arrest, and conviction. During closing arguments, defense counsel seized upon the exclusion of this evidence by arguing that “[t]here’s zero evidence of an arrest, of BAC or [of a] conviction,” that “[i]n this case there’s no evidence of [defendant’s] blood alcohol, and there will be none” and “[t]here’s no definitive evidence of intoxication.” Defense counsel even went so far as to display a demonstrative exhibit making the same claims.

In addition, Defense counsel argued that Dr. Stephanie Lafayette, who examined plaintiff days after the incident and to whom plaintiff reported that he had “no” then-existing medical problems and zero pain, was intentionally not disclosed by plaintiff. However, neither plaintiff’s interrogatory responses nor his deposition testimony supporting this claim was in evidence. Sustaining plaintiff’s objection, the court ruled that this issue was not in evidence, and instructed the jury to disregard the argument. Defense counsel next informed the jury that his office had “tracked [Dr. Lafayette] down.” The court, again sustaining plaintiff’s objection, commented that defense counsel was “getting close to misconduct here,” noting that such investigative actions were similarly not in evidence. Ultimately, the court instructed the jury to disregard defense counsel’s arguments concerning plaintiff’s failure to call Dr. Lafayette and about the alcohol evidence.

The next day, the jury awarded plaintiff $15,235 in past economic damages, $2,000 in past noneconomic damages, and no future damages. Plaintiff timely filed a notice of intent to move for new trial, arguing defense counsel had engaged in prejudicial misconduct. Defendant countered that the alleged attorney misconduct, if any, was remedied by the court’s admonitions, and that the evidence supported the jury verdict. The court vacated the jury verdict, and granted the motion for new trial based on “multiple incidents of misconduct by defense counsel.” Defendant appealed.

In affirming, the appellate court explained that attorney misconduct constitutes an “irregularity in the proceedings”—a ground for the granting of a new trial under Code of Civil Procedure section 657. It then applied a two-step approach, first considering the alleged attorney misconduct and then evaluating any resulting prejudice. In the first step, with respect to the excluded evidence, the appellate court explained, “It is improper for counsel to assert or imply facts not in evidence that counsel knows excluded evidence could refute.” As for Dr. Lafayette, it found that defense counsel had improperly referred to evidence not in the record, improperly referred to that evidence after being advised to stop, and improperly argued with the court in front of the jury “in a transparent effort to highlight the evidence the court had instructed counsel not to mention.”

Next, having found misconduct, the appellate court considered the extent of any prejudice. The appellate court explained, “It is not enough for a party to show attorney misconduct. In order to justify a new trial, the party must demonstrate that the misconduct was prejudicial.” In essence, this standard dictates that the reviewing court must determine whether it is reasonably probable that the party claiming misconduct would have achieved a more favorable result had the misconduct not occurred. On this issue, the appellate court observed that the common theme of defense counsel’s improper arguments was that plaintiff was untruthful, i.e., that plaintiff lied about defendant’s intoxication and concealed Dr. Lafayette. These improper arguments, the appellate court found, caused the jury to almost entirely discount plaintiff’s evidence and overemphasize that of defendant’s witnesses. Ultimately, the appellate court held that while any of these improper arguments by defense counsel “might have been sufficiently prejudicial to [plaintiff] to warrant a new trial,” cumulatively, it was reasonably probable that plaintiff would have achieved a more favorable result absent such attorney misconduct.

Jackson, while recognizing that attorney misconduct alone may be insufficient to warrant the granting of a new trial, serves as a firm reminder to practice caution when advancing any argument at trial which may pertain to, or even touch upon, excluded evidence and/or facts not in the record.

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August 2, 2021