f/k/a . . . the archives

September 18, 2003

Belittling the Judge Can Really Hurt Your Client

Filed under: pre-06-2006 — David Giacalone @ 1:29 am

Reacting to combativeness, belittling, and other “reprehensible” conduct by plaintiff’s counsel, Justice Stanley A. Green has reversed a $16 million Bronx jury verdict, in a decision dated last month, in the case of Smith v. Sophia AU, M.D.    An article in today’s New York Law Journal provides many of the offending remarks, and notes that the lawyer in question, Thomas A. Moore of Kramer, Dillof, Livingston & Moore, is “one of New York’s top medical malpractice attorneys,” as well as a frequent contributor to NYLJ.  (“Verdict Set Aside Over Lawyer’s Conduct,” by Tom Perrotta, 09-18-2003)   The “upset” Moore plans to appeal.

 

Supplemental (09-18-03):   George Wallace at Declarations and Exclusions was far more diligent than I was willing to be after midnight last night — he took the time to excerpt some of the juicy quotes from the NYLJ article.  Besides thanking him for pointing back to “us,” I have to share with you his wonderfully apt Rhetorical Rule of Thumb:


Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase “with all due respect,” the odds that a respectful remark will follow decrease rapidly toward zero.

You can find more of such wisdom at D&E and at George’s personal(ity) blog, A Fool in the Forest.

 

Update (09-19-03):   My cyber colleague Carolyn Elefant over at MyShingle  has opined today:


“[F]or a judge to penalize innocent clients for their attorneys’ alleged misconduct…well, with all due respect (see George Wallace’s remarks on that phrase) and in the judge’s own words, that’s conduct that is truly “degrading to the institution of the court.”  

Well, it is respectfully submitted, that we need to know more about the decision  and its procedural context (I could not find the Opinion online), before deciding whether the judge has degraded the court.   If the plaintiff’s lawyer engaged in conduct that unduly prejudiced the jury, and the Opinion and resulting order allow a re-trial, perhaps justice will be done (with, for example, a settlement that is fair to all parties, or a new trial).   We need to worry (at least a little) about the defendant here.   When a plaintiff chooses an “attack dog”-style attorney, he or she might have to live with the consequences.

12 Comments

  1. David:
    You are right about reading the opinion (according to the article, it will be published on NYLJ on Monday) because it might offer additional insight. Still, what’s troubling is that reportedly, the judge didn’t do much about this conduct during the trial in the form of sanctions or instructions to the jury. As for your point about plaintiffs having to live with the results of “mad dog” attorneys, I wondered about that myself – perhaps the judge secretly hoped that by reversing this verdict, future plaintiffs would be deterred from using Moore for fear that their awards would be subject to challenge. So maybe this is a covert attempt by Green to diminish Moore’s business.
    From the excerpts I’ve seen of the case, it does seem that Moore was exceptionally rude and unprofessional to the defendants’ witnesses. But again, it would seem that a public apology in the courtroom would have done more to address the matter (and teach the jury about “inappropriate conduct”) than to penalize the plaintiff.
    Finally, as for the defendants, I agree that fairness is important. At the same time, they were represented by a large, well known firm that defends in medical malpractice cases. I would have more sympathy if the defendants here were outgunned in terms of money and/or resources, but here, it’s likely that their insurance company was paying the bill for the defense.

    Comment by Carolyn Elefant — September 19, 2003 @ 3:15 pm

  2. David:
    You are right about reading the opinion (according to the article, it will be published on NYLJ on Monday) because it might offer additional insight. Still, what’s troubling is that reportedly, the judge didn’t do much about this conduct during the trial in the form of sanctions or instructions to the jury. As for your point about plaintiffs having to live with the results of “mad dog” attorneys, I wondered about that myself – perhaps the judge secretly hoped that by reversing this verdict, future plaintiffs would be deterred from using Moore for fear that their awards would be subject to challenge. So maybe this is a covert attempt by Green to diminish Moore’s business.
    From the excerpts I’ve seen of the case, it does seem that Moore was exceptionally rude and unprofessional to the defendants’ witnesses. But again, it would seem that a public apology in the courtroom would have done more to address the matter (and teach the jury about “inappropriate conduct”) than to penalize the plaintiff.
    Finally, as for the defendants, I agree that fairness is important. At the same time, they were represented by a large, well known firm that defends in medical malpractice cases. I would have more sympathy if the defendants here were outgunned in terms of money and/or resources, but here, it’s likely that their insurance company was paying the bill for the defense.

    Comment by Carolyn Elefant — September 19, 2003 @ 3:15 pm

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