A federal district court recently awarded sanctions when the plaintiff’s attorney asked a single question about settlement discussions in front of a jury causing a mistrial. After the initial judge recused himself, the district court found the attorney’s conduct was reckless. Although this may be a nightmare scenario for most attorneys, ABA Litigation Section leaders believe the mistrial and sanctions could have been avoided with better preparation and early involvement of the court in admissibility decisions.
In Perrin Bernard Supowitz, LLC v. Morales, a food distribution company filed suit against its competitor and founders in the U.S District Court for the Central District of California, alleging the use of trade secrets to gain a competitive advantage. Ahead of trial, the parties filed a joint exhibit list. Exhibit 1216 was a screenshot of a text message exchange between the chief executive officers (CEOs) of the two companies. The defendant had texted he was one of the parties in the case and was “hoping to have a meaningful settlement discussion directly with [the plaintiff's CEO], CEO to CEO.”
The defendants objected to this exhibit. But the judge did not rule on any of the objections to the joint exhibit list prior to trial. Instead, the judge determined all objections would be addressed as they arose in trial.
Exhibit 1216 arose on the second day of trial. The plaintiff’s attorney called the author of the text message to the stand. The plaintiff’s attorney advised the judge that he would move on to Exhibit 1216 but would “set up a couple of questions” first with the defendant-witness. He then asked whether “there was a time . . . when you [defendant-witness] approached [the plaintiff’s CEO] about resolution of this litigation?”
The defendants’ counsel immediately objected to the question as soliciting privileged settlement discussions. The judge sustained the objection, but the plaintiff’s counsel responded in front of the jury that it was “between the parties.” The defendants’ counsel then moved for a mistrial, which was granted. The judge thereafter recused himself, and the case was transferred to another judge.
The second judge determined that the previous judge appropriately exercised his discretion in granting the mistrial. The judge reasoned that the previous judge “was in the best position to determine effect of [the plaintiff’s counsel’s] question upon the jury and whether a curative instruction would have sufficed.”
The second judge additionally found that the plaintiff’s attorney’s conduct was “reckless” and warranted sanctions. Given the notice that the defendants would object to Exhibit 1216, the judge rejected the attorney’s defense that he thought Federal Rule of Evidence 408 was inapplicable, writing that “he should have resolved the objection prior to asking such a question.”
Despite the consequences for the attorney’s misconduct, Perrin Bernard Supowitz is not causing any nightmares for Litigation Section leaders when preparing their questions for trial. “There is clearly more going on at the trial court level than just this incident,” states Jeanne M. Huey, Dallas, TX, Co-Chair of the Section’s Ethics & Professionalism Committee. Generally, she says that “an incident like this would have been curable with an instruction to the jury after the objection.” Yet, there seems to be a “disconnect” between the judge and counsel for the parties, observes Angela Foster, North Brunswick, NJ, Co-Director of Division IV of the Section, noting that “counsel was not using the [previous] judge as they should.”
An attorney can avoid such extreme consequences by working with, as opposed to around, the judge or objecting party. This case simply highlights that “being tricky to try and poison a jury is a very risky strategy,” explains Huey. By pushing the objectionable evidence in front of the jury, the attorney put the judge in a “bad situation,” agrees Foster. Section leaders agree that the more effective strategy is to go through the appropriate steps required to introduce and admit evidence. This further supports that the attorney is “acting in good faith,” adds Foster, and helps the judge help your client.
Alternatively, when seeking to prevent objectionable evidence from coming in, the objecting party should continue to work with opposing counsel in good faith to reach a compromise. For example, the parties could agree to limit the scope of the objectional evidence. If no agreement is met, Foster observes that there is still a benefit as the objecting party will be in the position to present “solutions” to the judge, not just deny the admission of the evidence.
In the event that the opposing counsel is not negotiating in good faith, as may be the case here, Huey urges the following to the objecting party: “Anticipate that your opponent may not know or follow the rules and make sure that you do.” She contends that the failure to obtain a ruling opened the door for the misconduct in Perrin Bernard Supowitz. As it is the attorney’s duty to be a competent attorney, the attorney has an obligation to stay ahead of the game in anticipating what their opponent will do.
