Grounds For a New Trial: A Minefield for Lawyers


Experience Counts.  

Anyone seeking to hire a lawyer for contentious litigation needs to be aware of his lawyer’s actual experience in court, specifically in civil litigation cases.  Why is this true?  For one thing, few cases are going to trial these days; 95% settle; so there are “trial lawyers” who have not handled a trial in ten years or more. Yet a trial can be a minefield.  If a lawyers says the wrong thing during trial, it can be grounds for a new trial, meaning, all that work that went into preparing for trial could be for naught.

Some lawyers don’t know any better and let things slip out of their mouths while zealously advocating their clients’ interests.   What are some examples of how a lawyer can say the “wrong thing” at trial?

Reference to Insurance.  Unless you are suing an insurance company for bad faith or a lack of coverage, the reference to insurance is not admissible and it can be grounds for a new trial.  When a jury hears that the defendant has insurance that covers his “negligence,” the jury might say, “wait, why would the Defendant exercise due care if he had insurance?  Why be careful, if he’s not paying the bill?  He must have been negligent.” This is a faulty conclusion that can come about by reference to insurance.  Plus, this is a distraction from the central issue, which is:  factually (aside from insurance), was the Defendant negligent (regardless of insurance coverage)?  Likewise, Pennsylvania has something called the collateral source rule.  For example, if you are hurt in a fall related injury, you might have UPMC or Highmark insurance that pays your bills, yet, you may still seek to recover those from the negligent sidewalk owner who caused the fall.  Why?  The defendant is not allowed to benefit from your insurance proceeds you received from a “collateral source.”  Such evidence is inadmissible.  That said, mentioning insurance during trial can be grounds for a new trial.

“Stand in My Client’s Shoes.”  Asking the jury to “stand in my client’s shoes for one second,” can be grounds for a mistrial.  This is because, the jury is supposed to look at the evidence objectively, and specifically not stand in the particular shoes of any party.

“Send a Message.”  Also, saying to the jury, “send a message by ruling in my client’s favor,” is also improper.  In Pennsylvania, cases are decided on the facts present in the case, and not to “send a message” regarding future cases or conduct, unless there is a claim for “punitive damages,” but few cases involves those.

Lawyer Opinions.  Lawyers are not supposed to say their own opinions to the jury.  It’s not relevant what the lawyers think.  Lawyers are advocates for their clients’ interests.  Of course the lawyer thinks that, in her opinion, her client should prevail, but it’s not relevant.

Lawyers can get in trouble not only for what they say, but for what their witnesses say.  There can also be grounds for a new trial if the lawyer asks his witness to say too much.  At times, the judge can give a “curative instruction” to the jury to disregard evidence it received inadvertently, but sometimes a curative instruction is not enough to get things right in the mind of the jurors.

Recently, for example, the appellate court held that reference to a patient’s smoking history (during medical expert’s testimony in a lung cancer-related medical malpractice) warranted a new trial, as the evidence was both irrelevant and highly prejudicial, the state Superior Court has ruled. There, in Sutch v. Roxborough Memorial Hospital, the three-judge panel upheld a Philadelphia trial court’s ruling to grant a new trial.  There, at the trial court level, Philadelphia Court of Common Pleas Judge Paul P. Panepinto, opined that his instruction to the jury to ignore remarks about a patient’s smoking history (a subject that the judged had barred either side from bringing up in testimony) could not correct the possibility that jurors could believe that smoking caused the patient’s lung cancer.

Writing the appellate court’s opinion was Judge John L. Musmanno, who opined that information regarding smoking habits of the deceased Rosalind Wilson unfairly hampered her daughter and executrix, Rosalind Sutch, in the medical malpractice case. “As the trial court properly reasoned, [Sutch] would suffer unfair prejudice if the jury discovered that [Wilson] was a smoker for approximately 50 years, in that this information might lead the jury to hold [Wilson] accountable, to some extent, for contributing to the cause of her death,” Musmanno said.

Does this mean you need a “safe” and overly cautious attorney?  Of course not.  Trial is a gamble that involves risks, but those should be educated guesses based on a knowledge of the law.   Some mistakes cannot be corrected, even with a curative instruction.

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