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Like a Leech on a Horse…

Props to the Second Department, for going so far as to reverse a judgment on behalf of a hospital in a medical malpractice action, and sending the case back for a new trial, due to the judge’s out of control behavior in front of the jury.

It is a little hard to explain the dynamics of a court room.  There are times you are wrapped up in a heated argument and have no idea how you got there, times you are facing completely unwarranted hostility and you just can’t figure out why.   Like a judge saying you are “like a leech on a horse”, as in this decision.

It is refreshing to see a court call a judge out, for once, on such bizarre behavior, noting that to  “interrupt, patronize, and admonish” one side repeatedly, in front of a jury, can be so prejudicial as to warrant a reversal.

In particular, for criminal lawyers, it is refreshing to see the Court remind us that “All litigants, regardless of the merits of their case, are entitled to a fair trial”.  This is because we criminal lawyers are often forced to stretch the bounds of creativity to craft a defense.  The judges who sit in the courtroom are often far more skeptical of such defenses than the juries who we are playing to.  This decision is a reminder that we should be entitled to run our defense, regardless of the judge’s opinion of its merits.

Some choice phrases from the decision:

“By way of example, at one point, the trial justice, after precluding the plaintiff’s counsel from cross-examining a witness, advised the plaintiff’s counsel, in front of the jury, that she was aware of the rules of evidence regarding when an attorney and client can speak during a break, and would explain them to the plaintiff’s counsel “later.” Another time, again in front of the jury, following a somewhat heated discussion between the trial justice and the plaintiff’s counsel, the trial justice advised the plaintiff’s counsel to “go review the books tonight.” At one sidebar conference, the trial justice went so far as to advise the plaintiff’s counsel, upon indicating that he was interrupting her, that she would not “allow the reporter to take any words from you at this point because I don’t think that you are going to do any service to yourself, the type of emotional tantrums that you have been having.” Later in the trial, in front of the jury, the trial justice inappropriately admonished the plaintiff’s counsel to “tone down the histrionics,” and advised him that she was “bewildered” as to counsel’s questioning, asserting that she found it to be “not that important,” in effect, irrelevant, and that a question posed by counsel was “not very good.” During one contentious exchange in front of the jury, the trial justice stated that the plaintiff’s counsel had put on a display that was “clearly, clearly fodder for a contempt citation.” In addition to the foregoing, numerous injudicious remarks were made by the trial justice, both sua sponte and in response to comments made by the plaintiff’s counsel. At one point, the trial justice stated to the plaintiff’s counsel, in front of the jury, that if counsel were permitted to examine the defendant’s expert witness before trial, he would be “like a leech on a horse.” The trial justice further stated that she was “astonished at the many things” that counsel said during the course of the trial. We note that the foregoing is not an exhaustive recitation of the incidents that give us cause for concern.”

Andrew Stoll is a New York City Criminal Defense, Civil Rights, and Employee Lawyer. He is the founding partner of Stoll, Glickman & Bellina, LLP, a Brooklyn based law firm dedicated to empowering the exploited. Stoll is an adjunct law professor at Seton Hall Law School, sits on the Corrections Committee of the New York City Bar Association, and is a member of the National Police Accountability Project.

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