A recent decision from the New York State Court of Appeals raises interesting questions about how far is too far in cross-examination. The opinion also presents interesting ethics and trial strategy considerations for practitioners to consider when confronting a similar legal issue in trial, according to one ABA Section of Litigation leader, who also offers tips on how to overcome these type of trial challenges.

Beating a Dead Horse at Trial Nets Sanctions
In Marx v Rosalind & Joseph Gurwin Jewish Geriatric Ctr. of Long Is., the trial court declared a mistrial when defense counsel continued lines of questioning despite the judge upholding multiple objections to the defense counsel's questions. As a result, the court sanctioned defense counsel almost $24,000 in costs and fees.

The trial court declared the mistrial and sanctioned counsel despite noting that, "[d]uring opening statement, [Plaintiff's counsel] advised the jury that they would hear about the decedent's behavior; and that, at times, she was resistant to treatment, and was verbally harsh or verbally aggressive with the staff, [the defense] attorney had a legitimate interest in inquiring of the witnesses about these issues on cross examination, including decedent's prior psychiatric admission to Brunswick Hospital."

On cross-examination of the decedent's daughter-in-law and then daughter, defense counsel attempted to elicit testimony regarding the decedent's resistance to treatment and verbal aggression with staff and prior psychiatric hospital admission. Admissions by the daughter‑in‑law, while couched in softer language, appeared to validate the defense theory that the decedent was both resistant to treatment and in fact verbally aggressive and harsh with staff.

The underlying records were not in evidence, and the court sustained numerous objections to attempts by defense counsel to cross examine the daughter in law (27 objections sustained) and daughter (14 objections). "The Court found no good faith basis for counsel continuing on the issue of South Oaks, South Oaks Psychiatric. Based upon the testimony, complaint, and bill of particulars for a case of alleged nursing home negligence with no claim for emotional distress or physical abuse by the defendants, the case is limited with regard to bed sores and physical injury to the decedent's left heel."

Ultimately, the court granted a mistrial "on the basis that there were four questions substantially the same, with objections sustained each time regarding the decedent's psychiatric history. The court set forth that the conduct by counsel was sufficiently prejudicial and poisoned the jury to the extent that it is not curable by way of an instruction, no matter how strong that instruction might be."

Appeals Court Disagrees
The appellate court reversed the award of costs, finding defense counsel's "cross-examination of the plaintiff regarding the decedent's prior hospitalization at South Oaks had a good faith basis in the record that was before the trial court and was not frivolous." It deemed important that the parties stipulated to the admission into evidence of the decedent's medical records at the beginning of the trial, including a discharge summary that indicated that the decedent had been transferred to one of the hospitals in which she was treated "from South Oaks Psychiatric Facility."

The appellate court also found the plaintiff's opening statement gave some relevance to this hospitalization. It concluded the trial court improvidently exercised its discretion in awarding costs to the plaintiff.

Lessons Learned 1: Ethical Considerations
Although the trial court sanctioned defense counsel, "there are ethics issues cutting both in favor of and against sanctions," says Patrick R. Burns, St. Paul, MN. deputy director of the Minnesota Office of Lawyers Professional Responsibility. "Defense counsel here had an obligation under Rule 1.1 to provide competent representation." That includes thorough cross-examination and making an adequate record for appeal, Burns added.

Accordingly, Rule 3.4(e) (Fairness to Opposing Party and Counsel) prohibiting a lawyer from "in trial, allud[ing] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence," is perhaps the most relevant from a sanctions perspective, says Burns. "The first couple of times [the objectionable line of questions] were asked, it was probably not an issue. When you keep asking the same question—even if the court incorrectly upheld the objection—you may evolve into a 3.4(e) issue," he adds.

"[Defense counsel] initially appeared to have a good faith belief. By the [tenth] time, she may have been piling on and gotten into Rule 8.4(d) territory," Burns offers. A lot of this can be tone, he posits, and an ethics issue involving conduct prejudicial to the administration of justice is more likely where the lawyer displays open disdain for the judge.

Lessons Learned 2: Considerations at Trial
There is no reference in the trial or appeals court opinion to an offer of proof, notes Douglas L. McCoy, Mobile, AL, cochair of the ABA Section of Litigation's Trial Practice Committee. "An offer of proof provides a trial judge with a better opportunity, outside the pressure of the presence of the jury, to understand and thoroughly evaluate disputed evidence."

This is important, as it, "avoids argument between counsel and the court in the presence of the jury, and a possible ruling by the court against counsel in the presence of the jury. Either might have a substantial adverse impact on the jury's view of the lawyer and the lawyer's client," adds McCoy.

McCoy notes that counsel in this case must have addressed the matter in some way. He points to plaintiffs' counsel's statement to the jury in opening argument about her client's psychiatric admission.

"Remember, once you get to trial things can change and the judge's perspective can change," cautions McCoy. With an offer of proof, "You have an opportunity to give the judge a better understanding of why what you want to introduce is relevant to the case. You may even change the judge's mind," he concludes.

Joseph P. Beckman is an associate editor and former editor-in-chief for Litigation News.

Keywords: cross-examination, sanctions, ethics, Rule 3.4(e)

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