Interaction With Trial Participants

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 551-570

CHAPTER 19

Interaction With Trial

Participants

§19:01 New York Trial Notebook 19-2

I. THE PLAYERS

A. TRIAL JUDGE

§19:01 Maintain Utmost Respect

Show the trial judge respect at all times. An

acrimonious attitude is never helpful. [See, e.g.,

Solow v. Wellner, 157 AD2d 459, 549 NYS2d 384

(1st Dept 1990) (trial judge disqualified counsel for

“outrageous conduct,” and commented he might be

prejudiced against client by counsel’s personality;

counsel was reinstated following an Article 78

proceeding, but denial of counsel’s subsequent

motion to disqualify judge was upheld). See also

Brown v. MABSTOA (plaintiff’s counsel sanctioned

for frivolous conduct) and Sholes v. Meagher

(defendant’s counsel assessed costs of the case

being mistried), discussed at §19:72.]

While maintaining the utmost respect, make it

clear that you believe in your case, that you will

zealously advance your client’s position, and that

you are prepared to do what is necessary to protect

your client’s interests. While no trial court relishes

its orders being appealed, do not hesitate to raise

the possibility if the circumstances warrant. Do so

respectfully; perhaps “if you rule in that way, your

honor is forcing me to go to the Appellate Division

to protect my client.” If the issue is a close call and

the court perceives you are not bluffing, it may be

influenced to fashion the ruling in a way to avoid

the problem, or defer the ruling to some later point

in the trial.

IN PRACTICE:

Take a moment and remind your client

and witnesses that they should at all times

maintain proper decorum and a respectful

attitude toward the court. In Kelly v.

Metropolitan Insurance and Annuity Co., 82

AD3d 16, 918 NYS2d 50 (1st Dept 2011),

the trial court sustained an objection to a

question put to plaintiff’s expert, and then

became very offended at the expert’s reaction

after defendant’s counsel complained that

the expert had “mouthed words to the jury.”

The judge took the step of polling the entire

jury; one juror indicated a “gesture” had

been made; another said “it appeared the

expert hadn’t agreed with what the court had

said”; a third juror said “the expert had ‘just

opened her mouth;” a fourth juror said “the

expert’s mouth ‘opened and closed, more in

exasperation or a sigh;” a fifth juror said “the

expert ‘gesticulated,’ ‘rais[ing] her shoulders’

as if ‘surprised;’” a sixth juror said “the expert

made a ‘voiceless gesture;’” the final three

jurors polled saw nothing. Id. at 20-21, 918

NYS2d at 52-53. “The court expressed its

exasperation with plaintiff’s expert, stating,

‘That’s more than disrespectful, it is challenging

the ruling of the Court, notwithstanding the

Court’s ruling in front of the jury . . . This

is an experienced testifier. For her to come

in here and to nonverbally communicate to

the jury that I don’t know what I’m doing is

not okay.’” Id. at 21, 918 NYS2d at 53. The

trial court changed its mind several times,

at first saying it would “write a curative up;”

then ruled that the expert’s testimony would

stand but would be precluded from any further

testimony; then, after defendant’s counsel

was unwilling to forego cross examination,

allowed the expert to continue to testify, after

instructing that “‘[i]f the credibility of this

Court and the Court’s ruling and the integrity

of the judicial system are to be maintained, a

witness cannot challenge the Court’s rulings

with impunity. The Court has admonished this

witness to refrain from demonstrating in any

manner displeasure or objection [sic] with the

Court’s rulings. Do you understand?’” Id. at

22, 918 NYS2d at 53. The jury found for the

defendants. The First Department reversed

and ordered a new trial, finding that “the court

rightfully took umbrage with what it perceived

as the expert’s lack of respect for the court

. . .”, id. at 22, 918 NYS2d at 54, but found

that the court had overreacted; and for this as

well as other reasons ordered a new trial. The

lesson is clear though: The entire episode, and

perhaps the appeal, could have been avoided

if the expert had maintained a poker face in

response to what the expert obviously thought

was a bad ruling on the part of the court.

NOTE:

It never pays to annoy a judge, especially

in the midst of a trial. It was reported in the

Madison St. Clair Record, Oct. 29, 2009,