Interaction With Trial Participants

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 5-26

TRIAL

PARTICIPANTS

CHAPTER 19

INTERACTION

WITH TRIAL PARTICIPANTS

§19:01 New York Trial Notebook 19-2

TRIAL

PARTICIPANTS

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.

NOTE:

The old Code of Professional Responsibility’s

Canon 7, “A Lawyer Should Represent a Client

Zealously Within the Bounds of the Law,” and

its accompanying disciplinary rule DR 7-101,

“Representing a Client Zealously,” were superseded

by New York’s Rules of Professional Conduct on

April 1, 2009. Some lawyers are not aware that

the words “zeal” and “zealously” do not appear

anywhere in the Rules of Professional Conduct.

Some scholars believe the words were deliberately

omitted “in consideration of the deleterious effects

this concept has had on the well-being of lawyers.”

Goldman, Robert, Perspective, NYLJ 4/22/19, p,

6. This opinion piece noted that a National Task

Force on Lawyers’ Wellbeing, initiated by several

organizations including the ABA Commission on

Lawyer Assistance Programs, reported that “[a]

zealous adversarial system perpetuates the ‘chronic

incivility’ that the Task Force highlighted as a basis

for reform.”

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